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FOURTH
SECTION
CASE OF
URBÁRSKA OBEC TRENČIANSKE BISKUPICE
v.
SLOVAKIA
(Application
no. 74258/01)
JUDGMENT
STRASBOURG
27
November 2007
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 Urbárska obec Trenčianske Biskupice v.
Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 9 January 2007 and on 6 November 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 74258/01) 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 Urbárska obec –
pozemkové spoločenstvo Trenčianske
Biskupice (“the applicant”) on 7 September
2001.
- The
applicant association was represented by Mr Ján Drgonec,
assisted by Mr Marko Polakovič,
lawyers practising in Bratislava. The Government of the Slovak
Republic (“the Government”) were represented by Mrs
Marica Pirošíková, their Agent.
- The
applicant alleged, in particular, that its rights under Article 1 of
Protocol No. 1 had been violated as a result of the compulsory
letting of its members' land and the subsequent transfer of that land
to the tenants.
- By
a decision of 12 September 2006, the Court declared the application
partly admissible.
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 9 January 2007 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mrs Marica
Pirošíková, Agent,
Ms Miroslava
Bálintová, Legal Adviser.
(b) for the applicant
Mr Ján
Drgonec, Counsel,
Mr Marko Polakovič, Legal
Adviser,
Mr Ján Krátky, Vice-president of the
applicant association.
The
Court heard addresses by Mr Drgonec and Mrs Pirošíková.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant is a registered
association of landowners (pozemkové
spoločenstvo). It is a legal person with its
registered office in Trenčín. It was
entered in the official register with effect from 30
December 1996. Mr K. Rehák,
its president, lodged the application on the applicant's behalf.
A. Background information
- Under
the communist regime in Czechoslovakia owners of land were in most
cases obliged to put their land at the disposal of State-owned or
cooperative farms. They formally remained owners of the land but in
practice had no possibility of availing themselves of the property.
- Some
of the land in question was, for various reasons, not cultivated by
the farms. It was the State policy to promote the use of such land
for gardening. For that purpose allotments (záhradkové
osady) were established, mainly in the vicinity of urban
agglomerations. Individual plots of land were put at the disposal of
persons belonging to the Slovakian Union of Allotment and Leisure
Gardeners (Slovenský zväz záhradkárov),
who were allowed to cultivate the land as a pastime activity for
their individual needs.
- In
the context of Czechoslovakia's
transition to a market-oriented economy following the fall of the
communist regime, Parliament adopted the Land Ownership Act 1991 (for
further details concerning the relevant law and practice see point II
below), the purpose of which was to mitigate certain wrongs and to
improve the care of agricultural and forest land.
- Under
the Land Ownership Act 1991 the plots of land on which garden
colonies had been established were not to be restored in natura
to the original owner where ownership of the land had passed from the
original owners to the State or a legal person. In such cases the
original owners were entitled to compensation in kind or in pecuniary
form. In this category of cases the legislator gave precedence to
legal certainty for the existing users of the property, as the use of
land for gardening was considered to be of greater public interest
than restoring the land in natura to its original owners.
- In
the second category of cases, where the original owners maintained
their ownership rights, albeit in name only (nuda proprietas),
the Land Ownership Act 1991 established conditions enabling the
owners to enjoy their property rights to a greater extent. In
particular, it provided for the land to be let to the existing users,
with a notice period expiring on the date when the temporary right to
use the land came to an end. The tenants were, however, entitled to
have the lease extended by ten years unless an agreement to the
contrary was reached between the parties. The landowners were also
entitled to request, within three years of the coming into effect of
the 1991 Act, the exchange of their property for a different plot of
land owned by the State.
- The
above approach, permitting the owners to recover full possession of
their land after the expiry of the ten years for which the tenants
had the right to have the lease extended, was modified with the
adoption of Act 64/1997. As a result, owners have only a limited
possibility of terminating the lease, mainly on the grounds of the
tenants' failure to comply with their obligations. The position of
the tenants has been strengthened in that they are entitled to
acquire ownership of the land in allotments. As to the owners, Act
64/1997 gives them the right to obtain either a different plot of
land or pecuniary compensation.
- In
introducing Act 64/1997 the legislator abandoned the philosophy of
giving general priority to the rights of the owners of the plots of
land in allotments and took the position that it was in the general
interest that the rights of persons who had used the land for
gardening should prevail.
B. Particular circumstances of the applicant's case
- The
land owned by the predecessors of the members of the applicant
association was put at the disposal of the agricultural cooperative
in Trenčín-Soblahov. The
owners' formal title to the land remained unaffected, but they had no
possibility of using it in practice.
- On
24 November 1980 the cooperative farm let the land, free of charge,
to the Trenčín branch of the
Slovakian Fruit and Gardening Association (Slovenský
ovocinársky a záhradkársky zväz), as
the Union of Gardeners was known at the time. The
contract was to expire on 31 December 2000
unless the parties reached an agreement on its extension. The tenant
was to return the land to the lessor in its original state on
termination of the lease.
- On
31 March 1982 the authorities approved the establishment of the “Váh”
allotment on the plot of land in question, located in an industrial
area on the outskirts of the town of Trenčín.
The project envisaged the apportionment of 74 individual plots
with a surface area of approximately 300 square metres on which
garden huts with a surface area of 12 square metres would be built.
Re-cultivation of the land and communal facilities such as a road and
a parking area, water supply and a fence at the allotment's
boundaries were also planned.
- The
local branch of the gardening association subsequently concluded
separate contracts with its members. Individual plots of land were
thereby put at the latter's disposal until 31 December 1999. The
gardeners obtained a permit to build huts. Unless the lease contract
was extended before 30 June 1999, the huts were to be entirely
removed by the gardeners.
- In
1995 the present members of the applicant association inherited the
title to the land where the Váh
allotment had been established.
- On
12 May 1997 the applicant association submitted a draft rent contract
to a representative of the gardening association. On 21 May 1997 the
president of the Váh allotment
rejected the proposal as being unacceptable. Reference was
made to negotiations about a one-year contract under Act 64/1997
pending a decision on the ownership of the land.
- Between
1998 and 2002 the Trenčín municipality
charged the applicant 11,260.92 Slovakian korunas (SKK) a year in
real property tax in respect of the land used by the gardeners. The
tax was based on municipal regulations fixing the tax on gardens at
SKK 0.44 per square metre.
- The
applicant submitted copies of bank statements indicating that the
Slovakian Union of Allotment and Leisure Gardeners had paid to it,
following the entry into force of Act 64/1997, SKK 8,762.40 as a
yearly rent for the use of 29,208 square metres of land. That amount
corresponds to SKK 0.3 per square metre.
- The
applicant association unsuccessfully attempted to recover possession
of the land. For that purpose it offered to compensate the gardeners
for their existing property attached to the land.
- On
22 July 1998 the gardeners in the allotment initiated proceedings
under Act 64/1997 with a view to having the ownership of the land
transferred to them.
- On
24 September 1999 the Trenčín District
Office granted the request to start proceedings under Act
64/1997. The Trenčín Regional Office
upheld this decision on 24 November 1999.
- On
6 September 2000 the Trenčín Regional
Court dismissed an action which the vice-president of the
applicant association and several other persons had lodged against
the above decision of the Regional Office. The Regional Court found
that the statutory requirements for bringing proceedings under
sections 7 et seq. of Act 64/1997 had been met.
- On
30 November 2001 the District Office in Trenčín
made public the consolidation project pursuant to section 13 of Act
64/1997. The president of the applicant association as well as all
the other landowners whose address was known were notified of the
project and informed that the data contained therein could be
challenged within fifteen days.
- The
letter stated, in particular, that one part of the applicant's land
(1.5665 hectares) had been valued at SKK 6.1 per square metre and the
other part (1.0046 hectares) at SKK 6.9 per square metre. The major
part of the land to be provided to the applicant in compensation was
valued at SKK 9 per square metre. The valuation had been carried
out in accordance with the relevant administrative regulation. It was
based on the classification of the land and its quality at the time
when the tenants had acquired the right to use the land.
- Members
of the allotment submitted their comments on the project. The
authorities approved the project on 11 February 2002.
- On
4 June 2002 a decision was issued to carry out the consolidation
project. On 6 August 2002 the Regional Office in Trenčín
dismissed the appeal lodged by the landowners.
- The
gardeners subsequently paid the purchase price for the 2.5711
hectares of the applicant's land to the Slovakian Land Fund. On
1 October 2002 the applicant association received 1.4097
hectares of different land in compensation. On 2 December
2002 the District Office in Trenčín
approved the manner in which the consolidation project had
been implemented. Its decision became final on 14 February 2003. On
that day the ownership of the relevant plots of land passed formally
to the persons involved.
- The
zoning plan in respect of the area in which the Váh
allotment is situated was approved in 1999. It indicates that the
whole area forms part of a “production and services zone”.
The zoning plan does not foresee that the land in the allotment will
be used for its current purpose in the future. At present an
industrial park is in the process of being established in the
vicinity of the allotment. The land within the allotment has not been
included in the project at this stage.
- According
to information in the land register, at least eight members of the
Váh allotment sold their plots to
other persons between 2004 and 2006.
- On
17 May 2005 the District Land Office in Trenčín,
at the Government's request, explained that the Váh
allotment in Zlatovce was situated on land which, at the time of its
establishment, had been derelict and had served as a municipal dump.
The surface area of the applicant's land which fell under Act 64/1997
was 2.5711 hectares. The surface area of the land which the applicant
had received in compensation was smaller as it was arable land of
higher quality and value. The document further indicated that
the value of the applicant's land taken into account in the
consolidation proceedings had been the value on the date when the
allotment was established. The same regulation relating to the value
of real property for administrative purposes had been applied in
valuing the substitute land.
- In
2005 one of the representatives of the applicant association sold to
a company a plot of land in the vicinity of the Váh
allotment for SKK 380 per square metre.
Prior to the sale, an expert had valued the land at SKK 288. On
10 January 2007, the same company offered to buy different plots
belonging to the applicant association in the area for SKK 380 per
square metre.
- In
August 2005, at the Government's request, an expert established the
value on 1 October 2002 of both the land in the allotment and the
land which the applicant association had received in compensation.
The expert calculated the value for general purposes of the land in
the allotment at SKK 1,166.40 per square metre. The location of
the land in an industrial zone increased its value considerably
according to the opinion.
- The
same expert assessed the general value of the other plot of land at
SKK 110.16 per square metre. The opinion stated that the substitute
plot of land was situated between a motorway and a slip road and that
a high voltage line was erected above it. As a result, multiple
restrictions applied to the use of the plot. No construction activity
was envisaged in the area.
- On
15 December 2006 a different expert, at the Government's request,
established the value in 1982 of the applicant's land at SKK 257,100,
or approximately SKK 10 per square metre. The expert calculated the
value of the land on 14 February 2003 at SKK 7.71 million, that is,
approximately SKK 300 per square metre. The gardeners' investments
(huts, fence, wells, permanent vegetation, etc.) were tentatively
valued at SKK 241 per square metre of land in 2003. The general value
of the land including the gardeners' investments was thus SKK 541 per
square metre. Finally, the expert assessed the general value in 2003
of the arable land which the applicant association had obtained in
compensation at SKK 95 per square metre.
- On
21 December 2006, at the applicant's request, a private company
assessed the value on 23 May 2002 of the applicant's land used in the
allotment at SKK 7.6 million. That sum corresponds to approximately
SKK 295 per square metre. In a document dated 16 January 2007,
at the applicant's request, the company in question submitted
comments on the above opinion of 15 December 2006. The view was
expressed that the expert's conclusion was probably not in line with
local market prices. Plots of land similar to those used by the
gardeners, including gardeners' investments, were most frequently
sold for between SKK 250 and 300 per square metre, whereas free plots
of land outside allotments were being sold at SKK 350-380 per square
metre in that area. The use of the land by gardeners had rather a
negative impact on its general value. Land in the area in question
could be let out for at least SKK 20 per square metre yearly, its
value for general purposes being between SKK 280 and 300 per square
metre.
- In
a letter addressed to the Government's Agent on 14 March 2007, the
Institute of Forensic Engineering in Zilina,
having examined the comments
submitted by the above private company, expressed the view that the
expert who had submitted the opinion on 15 December 2006 had
proceeded in accordance with the relevant law.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Land Ownership Act 1991 (Act 229/1991 Coll.)
40. The
Land Ownership Act 1991 (Zákon o
úprave vlastníckych vzťahov
k pôde a inému poľnohospodárskemu majetku)
entered into force on 24 June 1991.
- Section
19(1) provides that the purpose of land consolidation within specific
areas is to establish integral economic units, in accordance with the
needs of individual landowners and with their consent, in line with
public needs as regards creation of the landscape, the environment
and investment activities.
- Paragraph
2 of section 22 provides that, as of the entry into force of the Act
and unless a different agreement is reached with the owner, the user
of the land shall acquire tenancy rights in respect of it.
- Under
section 22(3), as in force until 25 March 1997, in cases where the
land was used by individual gardeners in an allotment the tenancy
could not be terminated before expiry of the period for which the
land had been originally put at the disposal of the users. Unless the
parties otherwise agreed, the tenants had the right to have the
tenancy extended by another ten years. The rent and the purchase
price in respect of such land were to be determined on the basis of
the classification and quality of the land at the time when the
gardeners' right to use it had been established. The tenants had the
right of pre-emption should the owner decide to sell the land.
- Section
22(4) entitled the owners of land used by gardeners in allotments to
request, within three years of the entry into force of the Act,
exchange of the land for a different plot of land owned by the State.
The land to be proposed in exchange had to correspond, as regards
both size and quality, to the original land and it was to be
situated, where possible, in the same area.
B. The Land Consolidation Act 1991 (Act 330/91 Coll.)
- The
Land Consolidation Act 1991 (Zákon o pozemkových
úpravách, usporiadaní pozemkového
vlastníctva, pozemkových úradoch, pozemkovom
fonde a o pozemkových spoločenstvách) entered
into force on 19 August 1991.
- Section
1 provides that land consolidation consists of the rational
arrangement of land ownership in a specific area in accordance with
the requirements of the protection of the environment and the
creation of ecologically stable territorial systems, the functions of
agricultural land and economic and production criteria applicable to
modern agriculture and forestry.
- Under
section 2(a), land consolidation pursues the aim, inter alia,
of resolving issues and eliminating obstacles related to ownership
and possession/occupancy of land which arose as a result of
historical developments prior to the entry into force of the Act.
- Section
29(1) provides for the possibility of transferring the ownership of
land in garden allotments to the tenants subject to compensation of
the landowners.
C. Act 64/1997 Coll.
- Act
64/1997 on the use of plots of land in garden allotments and
arrangements as regards their ownership (Zákon
o uZívaní pozemkov v
zriadených záhradkových osadách a
vyporiadaní vlastníctva k nim) governs
the use of land within gardening allotments and the transfer of
ownership rights in respect of such land. It entered into force on 11
March 1997 and took effect on 26 March 1997. It repealed
section 22(3) of the Land Ownership Act 1991.
- The
government explanatory report of 10 December 1996 which was submitted
to Parliament together with the draft Act indicates that some 5,700
hectares of land (approximately 0.22 per cent of all agricultural
land in Slovakia) were used by 100,000 individual gardeners in 987
allotments at that time. Gardening served as relaxation and provided
a partial supply of fruit and vegetables to at least 700,000 town
dwellers in Slovakia.
- According
to the report, there was a public interest in land consolidation in
Slovakia. In that context, it was in the general interest to transfer
the ownership of land in garden allotments to the existing tenants as
it would provide greater legal certainty for both the gardeners and
the owners.
- The
tenants would obtain ownership of the land which they used and would
not risk losing the surplus value which they had added to the land
through their work and investments. As to the owners, they were
likely to continue to have their rights to avail themselves of the
property restricted for a considerable period of time; the allocation
of appropriate alternative plots of land to them would resolve that
problem. According to the explanatory report, compensation based on
the surface area and quality of the land at the time when the owner
had lost the possibility of using the land was appropriate. Pecuniary
compensation was to be paid in exceptional cases only where the owner
either asked for it or refused compensation in natura.
- Under
section 1(1), the aims of the Act are (i) regulation of the use of
the land in garden allotments and (ii) definition of the procedure to
be followed with a view to land consolidation in garden allotments
under a special law (reference is made to section 29(1) of the Land
Consolidation Act 1991).
- Section
3(1) of Act 64/1997 provides that, unless the owner of the land and
the gardeners concluded a tenancy agreement earlier under a special
regulation, a tenancy comes into being between them as of the moment
when the Act takes effect.
- Paragraph
2 of section 3 enumerates the conditions under which the owner of the
land is entitled to terminate the tenancy. Such entitlement is
limited to cases where the tenant (i) is not using the land with due
care, (ii) has constructed a building on the plot without a permit,
(iii) has sub-let the land to a third person without the owner's
consent or (iv) has failed to pay the rent, despite a prior warning,
by 30 August following the year for which the rent is due. An owner
who puts an end to a lease is obliged to compensate the tenant for
buildings and permanent vegetation as well as for the tenant's share
in the equipment jointly used by the gardeners within the allotment
(section 3(3)).
- Pursuant
to section 4(1), the yearly rent for the use of plots of land in
allotments is ten per cent of their value as established under
section 15(5-7) of Regulation 465/91 of the Ministry of Finance, the
minimum sum being SKK 0.3 per square metre. This provision does not
affect the amount of rent which owners and tenants may have agreed
under a special law at an earlier date.
- The
main purpose of Act 64/1997 is to permit the transfer of ownership of
the land to tenants in allotments where the majority of tenants so
request and where the owners have refused to sell the land at a price
not below the level of compensation provided for under section 11. In
such cases proceedings are brought, in the course of which a
preliminary inventory of the land is prepared. The inventory can be
challenged within thirty days of its publication. Once the
proceedings have started, the competent district office invites the
Slovakian Land Fund to select State owned plots of lands to be
offered as compensation to owners of the land situated in the
allotments (sections 7 and 8).
- Section
10(1) provides that, prior to approval of such a land consolidation
project, the district office involved has to ask the owners to inform
it, within 60 days, whether they wish to be allocated a different
plot of land of corresponding surface and quality in the same area or
to receive financial compensation for their land. Where the allotment
is situated in a built-up area of a municipality, the owner can claim
a different plot of land in a comparable area. Where the owners do
not indicate their preference within 60 days, they are to receive
financial compensation (section 10(3)).
- Section
11 governs financial compensation for plots of land situated in
allotments. It is to be determined on the basis of the quality and
nature of the land at the time when the gardeners' right to use it
was established. Section 11 further provides for an increase or
decrease in compensation according to the location of the land and
possible restrictions on its use.
- A
consolidation project comprises, inter alia, a recapitulation
of the proceedings, a list of tenants with indication of the land
which they use and its value, a list of owners who have requested
financial compensation and its amount and a proposal as regards the
situation of the substitute land to be provided to the owners
(section 12).
- Under
section 13, the district office must publish the consolidation
project under the Act and notify the persons concerned thereof. If no
objections are filed, the district office must approve the project.
If the district office dismisses objections to the data included in
the project, a regional administrative authority must re-examine
them. A decision on approval of the land consolidation project can be
reviewed by an administrative court.
- Sections
15-17 govern the implementation of the approved land consolidation
projects. Under section 17(2), an entry in the land register shall
indicate that the new owner of the land in an allotment is obliged to
use it for the same purpose as previously until a different use has
been approved.
- Section
17(3) provided that, where the tenants did not pay the compensation
due, the ownership of the land was transferred to the Slovakian Land
Fund. The latter could not use the land but could let it to the
person who used it. This provision ceased to have effect after the
Constitutional Court declared it contrary to the Constitution.
D. Regulation 465/1991 of the Ministry of Finance
- Regulation
465/1991 of the Ministry of Finance of 25 October 1991, as amended,
governed determination of the price of buildings and plots of land
and compensation for the use of land. It concerned the value of
property for administrative purposes. It was repealed on 1 January
2004 and replaced by regulations on the determination of the general
value of real property.
- Section
15(5-7) provides that the price of plots of land registered as arable
land, orchards, vineyards, meadows or pastures is to be fixed in
accordance with Annex 8 to the Regulation. In the case of meadows and
pastures the price is 0.75 per cent of the price indicated in Annex
8. The annex provides for prices per square metre ranging from SKK
12.1 to SKK 0.5 according to the quality and classification of
the land.
E. The Real Property Tax Act 1992 (Act 317/1992 Coll.)
- Pursuant
to section 2(1), real property tax is payable by the owner as entered
in the land register. Where the owner has let another person use the
land, the tenant is obliged to pay the tax where the lease has lasted
or is to last five years at least, and subject to the registration of
the tenant in the land register.
F. Practice of the Constitutional Court
1. Judgment PL. ÚS 17/00
- Thirty-five
members of Parliament and the Prosecutor General brought proceedings
before the Constitutional Court claiming that several provisions of
Act 64/1997 were contrary to the Constitution and Article 1 of
Protocol No. 1. In particular, the members of Parliament relied on
the Court's case-law (James and Others v. the United Kingdom,
judgment of 21 February 1986, Series A no. 98, § 54, and
Sporrong and Lönnroth v. Sweden, judgment of 23 September
1982, Series A no. 52, §§ 69 and 73), arguing that there
existed no genuine public interest in the interference with the
landowners' rights and that the compensation which the landowners
were to receive under the relevant provisions of Act 64/1997 was not
appropriate.
- Both
petitions were examined jointly at a plenary meeting of the
Constitutional Court.
- On
30 May 2001 the Constitutional Court concluded that section 17(3) of
Act 64/1997 was contrary to, inter alia, the constitutional
protection of ownership rights. It dismissed the remainder of the
submissions.
- The
Constitutional Court noted that the regulation of relations in
respect of land used for gardening in allotments mainly concerned, as
in the case of restitution laws, the undoing or mitigation of the
wrongs which had occurred in the past when the principle of the rule
of law had not been respected. The legislator had a certain margin of
appreciation when deciding on the relevant issues, provided the
constitutional guarantees were upheld.
- With
regard to the compulsory letting of the land to the gardeners under
section 3 of Act 64/1997, it was merely a temporary measure pending
the transfer of its ownership to the gardeners in accordance with the
provision of that Act. It pursued the aim of providing the users with
legal certainty and of ensuring optimal use of the land in question
with due regard to the requirements of the landscape and the
environment. It was as such in the public interest. The measure was
limited in duration and it was not disproportionate as it filled the
gap which arose following the quashing of section 22(3) of the Land
Ownership Act 1991. Parliament, by obliging the owners to let the
land to the gardeners, had not overstepped its margin of appreciation
and had struck a fair balance between the general interest and the
protection of individuals' rights. Section 3 was therefore not
contrary to Article 1 of Protocol No. 1 to the Convention or its
constitutional equivalent.
- As
to the argument that the rent payable under section 4 of Act 64/1997
was disproportionately low, the Constitutional Court held that
Article 1 of Protocol No. 1 imposed on the Contracting Parties to the
Convention no specific obligations as regards compensation for the
use of property in the general interest. There was no appearance that
the relevant provision was unconstitutional.
- The
plaintiffs also argued that the transfer of ownership of the land to
the gardeners under sections 7 et seq. of Act 64/1997 was not in
the general interest as it restricted the rights of the owners to the
benefit of a different group of individuals without any relevant
justification.
- In
the Constitutional Court's view, that transfer of ownership was to be
seen in the broader context of land consolidation, the purpose of
which was set out in section 19 of the Land Ownership Act 1991 and in
section 2(a) of the Land Consolidation Act 1991. Consolidation
pursued the aim of setting up integrated land entities in accordance
with the needs of individual owners, with their consent, and with due
regard to general requirements as regards the creation of the
landscape, the environment and investment development. Land
consolidation was also justified with a view to adjusting the
existing relations between owners and users and eliminating any
obstacles which had arisen as a result of past developments. Sections
7 et seq. of Act 64/1997 in no way affected the above general
interest in land consolidation.
- The
plaintiffs further alleged that the compensation for land under
section 11 of Act 64/1997 was inappropriate as it was substantially
lower than the market value of the land.
- The
Constitutional Court noted that the owners had the choice between
alternative plots of land and financial compensation. The gardeners
could not be held liable and they should not be penalised for the
fact that the owners had been deprived of the possibility of enjoying
their property under a regime which had disregarded democratic
principles. Furthermore, the users, by cultivating the land, had
substantially increased its value. The Constitutional Court therefore
accepted as just the relevant provisions under which compensation to
the owners should be based on the value of the property at the time
when the gardeners had started using it. The compensation under Act
64/1997 was therefore appropriate and compatible with the
requirements of Article 1 of Protocol No. 1.
- Finally,
the Constitutional Court found that section 17(3) of Act 64/1997 was
unconstitutional as there was no justifiable public interest in
transferring ownership of land to the State in cases where the user
had failed to pay the amount due.
- In
a separate opinion three judges stated that the compulsory letting
under section 3 of Act 64/1997 was unconstitutional and that the
compensation payable under section 11 was not appropriate as it was
based on the value of the property at the time when the gardeners had
acquired the right to use the land.
- The
dissenting judges expressed the view that the parties to proceedings
under Act 64/1997 were in an unequal position. In particular, the
applicable law did not permit the administrative authorities or
courts called upon to review their decisions to balance the interests
of the persons involved, assess whether the transfer of ownership was
justified in the particular circumstances of the case or examine the
question whether the compensation provided to the owner was
appropriate.
2. Other relevant practice
- In
accordance with its established practice, the Constitutional Court
lacks jurisdiction to examine a complaint lodged by natural or legal
persons when the determination of the point in issue involves the
preliminary question of conflict of legal rules (see, for example, I.
ÚS 96/93, decision of 16 November 1993; II. ÚS 806/00,
decision of 16 November 2000; II. ÚS
19/2001, decision of 22 March 2001; or IV. ÚS
11/04, decision of 22 January 2004). Such
proceedings can be brought only by the persons enumerated in Article
130 § 1 of the Constitution including, inter alia,
one fifth of the members of Parliament and the Prosecutor
General.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A. Exhaustion of domestic remedies
- The
Government objected, as they did at the admissibility stage, that it
had been open to the applicant to raise an objection to the
consolidation project arguing that the value of the land which it was
to receive in compensation was disproportionately low. If the
administrative authorities had dismissed the objection, the applicant
could have sought a judicial review of their decisions. Similarly,
the applicant could have challenged before a court the administrative
decision of 11 February 2002 on approval of the consolidation
project. Ultimately, the applicant could have sought redress in that
respect before the Constitutional Court by means of a complaint under
Article 127 of the Constitution. It could not be excluded that either
the ordinary courts or the Constitutional Court might conclude that,
given the increase in value of the land due to the plans to establish
an industrial zone in the area, the implementation of Act 64/1997 in
the present case had violated the applicant's fundamental rights.
- Finally,
the Government drew the Court's attention to the fact that the
persons who had initiated the proceedings leading to the
Constitutional Court's judgment of 30 May 2001 had not claimed that
section 10 of Act 64/1997 was contrary to the Constitution. The
Constitutional Court had therefore not examined the conformity with
the Constitution of that provision.
- The
applicant association maintained that it could not have obtained
redress by means of the remedies referred to by the Government. An
ordinary court could only determine whether the administrative
authorities involved had correctly applied the law, namely Act
64/1997. However, it could not determine the issue of which the
applicant association complained before the Court, namely whether the
effects of the application of the relevant law were compatible with
its rights under Article 1 of Protocol No. 1. With reference to
the practice of the Constitutional Court, the applicant association
submitted that natural or legal persons lacked standing to initiate
constitutional proceedings in which the conformity of a law with the
Constitution was to be determined as a preliminary issue.
- The
applicant further argued that the alleged violation of Article 1 of
Protocol No. 1 stemmed directly from the provisions of Act 64/1997.
In particular, the alleged harm resulted from the fact that the
compensation for the land of the applicant's members had been
determined in accordance with the provisions of the law.
- In
its decision on the admissibility of the application the Court took
the following view as regards the Government's objection:
“The Court notes that the applicant association
has not argued that the domestic authorities incorrectly applied the
relevant law. It accepts that the applicant association did not have
at its disposal a directly accessible remedy permitting it to have a
determination on whether or not the effects of the application of
that law were contrary to its rights under Article 1 of Protocol No.
1. Furthermore, the arguments made by the ... applicant [association]
were raised before the Constitutional Court in the context of
different proceedings, and in its finding PL. ÚS 17/00 of 30
May 2001 the Constitutional Court found that the relevant provisions
of Act 64/1997 did not run counter to the land owners' right to
peaceful enjoyment of their possessions. In these circumstances, the
Government's objection relating to non-exhaustion of domestic
remedies must be dismissed.”
- In
view of the documents available, the Court finds no reason for
reaching a different conclusion at the present stage of the
proceedings. In particular, it has not been established with a
sufficient degree of certainty that ordinary courts called upon to
review the relevant administrative decisions were likely to review
issues other than the correct implementation of the relevant law,
which the applicant association does not contest (see also paragraph
79 above).
- The
Court further notes that, on 30 May 2001, the Constitutional Court at
a plenary meeting held that Act 64/1997 did not produce effects
running counter to the constitutional protection of the ownership
rights of landowners. In doing so it addressed issues which are
relevant for determination of the present application. The fact that
section 10 of Act 64/1997 was not among the provisions which were
specifically challenged by those who initiated the proceedings before
the Constitutional Court cannot affect that position.
- The
Court is not persuaded that the Constitutional Court or the ordinary
courts were likely to reach a different conclusion on those issues in
proceedings which the applicant might have initiated subsequently.
More importantly, the Court finds relevant the applicant's argument
according to which, in line with its established practice, the
Constitutional Court has consistently refused to examine individuals'
complaints where the conformity of a law with the Constitution is to
be determined as a preliminary question.
- This
objection must therefore be dismissed.
B. Compliance with the six-month time-limit
- The
Government further objected that, to the extent that the alleged
violation of the applicant's rights had resulted directly from the
relevant provisions of Act 64/1997, the application should be
rejected as having been lodged outside the time-limit of six months
laid down in Article 35 § 1 of the Convention. In their view,
that time-limit had started running when Act 64/1997 had become
operative on 26 March 1997.
- The
applicant disagreed.
- The
Court notes that the administrative authorities decided on the
implementation of the consolidation project in issue on 4 June 2002
and 6 August 2002. Subsequently the gardeners paid the purchase
price and the applicant association received land in compensation.
The District Court formally approved the manner in which the transfer
of ownership had been carried out by a decision given on 2 December
2002 which became final on 14 February 2003. It is on the latter date
that the applicant association became definitely aware of the
repercussions of the application of sections 7 et seq. of Act 64/1997
to its case. As the application was lodged on 7 September 2001,
this part of it cannot be rejected as having been lodged outside the
six-month time-limit (see Danov v. Bulgaria,
no. 56796/00, § 56, 26 October 2006, and
Myroshnychenko v. Ukraine (dec.), no. 10250/04, 3 April
2007, with further references).
- The
compulsory letting of the applicant's land was established ex lege
under section 3(1) of Act 64/1997. It lasted until the transfer of
ownership of the land to the gardeners on 14 February 2003. The
applicant's complaint about the compulsory letting of its land
relates to a continuing situation. Accordingly, the time-limit of six
months laid down in Article 35 § 1 of the Convention
could not start running before the termination of the lease (see
Danov, cited above, § 57, and, by converse implication,
Kopecký v. Slovakia [GC], no. 44912/98, §
35, ECHR 2004 IX). As the application was lodged prior to
termination of the lease, this part of it cannot be declared
inadmissible as having been lodged out of time either.
- It
follows that the Government's objection must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that the compulsory letting of its members' land
and the subsequent transfer of the land to the tenants had been
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.”
A. As regards the transfer of ownership of the land
1. Arguments of the parties
(a) The applicant association
- The
applicant contended that the transfer of ownership complained of
amounted to a deprivation of possessions within the meaning of the
second sentence of Article 1 of Protocol No. 1. The interference had
not been necessary in the public interest and an excessive individual
burden had been imposed on the applicant.
- The
reasons for the transfer of ownership of the applicant's land
indicated in the explanatory report to Act 64/1997 were not relevant
in the applicant's view. In particular, the argument that the
transfer would reinforce the legal certainty of the owners of the
land was inappropriate to justify the interference.
- Persons
involved in individual gardening in garden allotments represented
1.85 per cent of Slovakia's population, and 0.22 per cent of
cultivated agricultural land in Slovakia was thus used. Those figures
indicated that the importance of individual gardening was not
substantial from the point of view of land cultivation or production
of fruit and vegetables. In any event, the gardeners, including those
who acquired the applicant's land, were not persons in need and they
did not depend on cultivation of the land in allotments for ensuring
their subsistence. The owners of the land would probably have used
the land for the same purpose if they had been able to recover its
possession on expiry of the lease, as they had legitimately expected.
- The
compensation provided to the applicant was disproportionately low. It
was based on the value of the land at the time when the allotment had
been established in 1982. That value had been determined, in
accordance with a regulation, at SKK 9 per square metre, without
regard to its actual market value which had been around SKK 290 per
square metre at the time of the interference. Entirely different
political and economic situations had existed when the allotment was
established and at the time of the interference. It was therefore not
appropriate to base the compensation on the value of the applicant's
land in 1982. No account had been taken of the rate of inflation.
- The
land in the allotment had become an investment asset with
considerable development potential due to its location within the
agglomeration of Trenčín and
the establishment of an industrial park in its vicinity. Its value
was likely to grow. It was not excluded that the land might be
purchased for the purpose of extension of the industrial park.
- As
to the land which the applicant association had received in
compensation, it was agricultural land situated in the vicinity of a
motorway. Several restrictions applied to its use and it did not
possess development potential comparable to that of the applicant's
land in the allotment.
- Finally,
the applicant challenged the conclusions reached by the experts who
had submitted the above reports at the Government's request. The
assessment of the increase in the value of the property attributable
to the gardeners was unsubstantiated and overstated, in particular as
regards the gardeners' property such as the huts or the watering
system. In response to the Government's objection, the applicant
argued that the three experts employed by the company which had
submitted a valuation of the land at its request possessed the
required qualifications.
(b) The Government
- The
Government argued that the transfer of ownership of the applicant's
land had been carried out in the context of land consolidation, the
general purpose of which had been, in accordance with sections 1 and
2 of the Land Consolidation Act 1991, a rational arrangement of land
ownership in accordance with the requirements of the protection of
the environment and the creation of ecologically stable territorial
systems. It had been aimed at resolving issues and eliminating
obstacles related to ownership and possession/occupancy of land which
had arisen as a result of historical developments.
- In
introducing Act 64/1997 in the above context the legislator had
pursued the aim of bringing the ownership of land in allotments into
line with that of the property built or planted on it. The transfer
in issue had been in the public interest in bringing to an end the
state of uncertainty of those involved. It had thus promoted legal
certainty and ensured optimal use of the land in accordance with the
requirements relating to creation of the landscape and protection of
the environment. Preference was given to mutual agreement between
owners and tenants as regards the future ownership of the land. Act
64/1997 provided for compulsory transfer of ownership to tenants, in
circumstances set out therein, only where no agreement had been
reached between those involved.
- The
legislator had accepted that in proceedings under Act 64/1997 the
rights of individual gardeners should prevail over those of the
owners, as the former had cultivated land which had originally been
derelict. In the present case, in particular, the land had originally
served as a municipal dump and the gardeners had re-cultivated it at
their own expense. The gardeners had become attached to the
land, whereas the owners had de facto been unable to use it
for many years.
- The
value of the land for the purpose of proceedings under Act 64/1997
had been determined with reference to the date when it had been put
at the disposal of the individual gardeners. It was justified by the
fact that the gardeners had increased the quality of the land by
cultivating it, by planting permanent vegetation and by constructing
huts and various related facilities.
- As
to the compensation awarded to the applicant, the current market
value of the land was irrelevant for its determination. The owners
had lost the possibility of using the land many years ago when its
value had been considerably lower. That interference could not be
imputed to the gardeners and it would be inappropriate to request the
latter to compensate the owners in that respect.
- The
location in a protected zone of the land which the applicant had
received in compensation and the fact that no construction was
envisaged in the area admittedly had a negative impact on its market
value. This should, however, not be taken into account as these were
factors beyond the control of the persons involved.
- With
regard to the proportionality of the interference, the Government
also argued, with reference to the above expert opinions, that the
market value of the applicant's land at the time of its transfer to
the gardeners had been around SKK 290-300 per square metre. An expert
had valued the gardeners' investments such as huts, wells, vegetation
and other facilities at SKK 241 per square metre, which was almost
the same amount as the market value of the land itself. If the owners
were to regain possession of the land and compensate the gardeners
for their property at its market price, their net profit would amount
to the difference between the market value of the land and the
compensation payable to the gardeners, that is, approximately SKK
49-58 per square metre. However, in the expert opinions submitted in
August 2005 and on 15 December 2006 the market value of the land
which the applicant had received in compensation had been established
at SKK 110 and 95 respectively. Hence, the actual value of the land
which the applicant had obtained in compensation was double the net
profit which the applicant was likely to realise if its original land
was sold at its market price after reimbursement of the gardeners'
investments.
- When
considering the different expert opinions submitted in the case,
regard should be had to the fact that different indexes had been
applied. Hence, the expert who had valued the land at SKK 1,166.40
per square metre in August 2005 had taken account of the
establishment of an industrial park on the land in the allotment.
Although plans to that effect existed, no formal decision had been
taken yet. The Government submitted that that particular opinion
should therefore be disregarded.
- The
Government concluded that the compensation obtained by the applicant
was not disproportionately low in the circumstances.
2. The Court's assessment
(a) The relevant principles
- Article
1 of Protocol No. 1 requires that a deprivation of property for the
purposes of its second sentence must comply with the principle of
lawfulness, be in the public interest and pursue a legitimate aim by
means reasonably proportionate to the aim sought to be realised (see,
for example, Jahn and Others v. Germany [GC],
nos. 46720/99, 72203/01 and 72552/01, §§ 81-94, ECHR
2005).
- The
notion of “public interest” is necessarily extensive. In
particular, the decision to enact laws expropriating property will
commonly involve consideration of political, economic and social
issues. The Court finds it natural that the margin of appreciation
available to the legislature in implementing social and economic
policies should be a wide one and will respect the legislature's
judgment as to what is “in the public interest” unless
that judgment is manifestly without reasonable foundation. This
necessarily applies, and perhaps to a greater extent, in the event of
changes to a country's political system (see Zvolský and
Zvolská v. the Czech Republic, no. 46129/99, § 67,
ECHR 2002 IX, with further references). A taking of property
effected in pursuance of legitimate social, economic or other
policies may be “in the public interest” even if the
community at large has no direct use or enjoyment of the property
taken (see James and Others v. the United Kingdom,
judgment of 21 February 1986, Series A no. 98, § 45).
- A
“fair balance” must be struck between the demands of the
public or general interest of the community and the requirements of
the protection of the individual's fundamental rights. Compensation
terms under the relevant legislation are material to the assessment
whether the contested measure respects the requisite fair balance
and, notably, whether it does not impose a disproportionate burden on
the applicants.
- While it is true that in many cases of lawful
expropriation only full compensation can be regarded as reasonably
related to the value of the property, Article 1 of Protocol No. 1
does not guarantee a right to full compensation in all circumstances.
Legitimate objectives in the “public interest”, such as
those pursued in measures of economic reform or measures designed to
achieve greater social justice, may call for less than reimbursement
of the full market value. Less than full compensation may also be
necessary a fortiori where property is taken for the purposes
of fundamental changes of a country's constitutional system or in the
context of a change of political and economic regime. A total lack of
compensation can be considered justifiable under Article 1 of
Protocol No. 1 only in exceptional circumstances (see the
exhaustive outline of the Court's case-law on this issue in Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§
95-98, ECHR 2006 ..., with further references).
(b) Application of the relevant principles to the
present case
- In
the case under consideration the ownership of the land of the
applicant association was transferred to the tenants. As a result,
the applicant was deprived of its possessions within the meaning of
the second sentence of Article 1 of Protocol No. 1. This has not been
disputed between the parties.
- The
transfer of ownership of the applicant's land was carried out in the
context of proceedings under sections 7 et seq. of Act 64/1997. The
applicant did not object and the documents available do not indicate
that the domestic authorities proceeded contrary to the relevant
provisions of that Act. The interference was therefore “subject
to the conditions provided for by law” as required by the
second sentence of Article 1 of Protocol No. 1.
- Act
64/1997 was adopted in the context of a broader reform aimed at
consolidation of the ownership and use of agricultural land after the
country's transition to a democratic society and a market-oriented
economy. In particular, consolidation pursues the aim of a rational
arrangement of land ownership in accordance with the need for
protection of the environment and the creation of stable ecological
systems. The settlement of issues related to ownership and
possession/occupancy of land which arose as a result of historical
developments is one of its purposes (see sections 1 and 2(a) of the
Land Consolidation Act 1991).
- As
regards the agricultural land situated in gardening allotments, in
introducing Act 64/1997 the legislator took the position that it was
in the general interest that the rights of the persons using the land
for gardening should prevail. Particular emphasis was laid on the
fact that through their work and investments those persons had
considerably increased the value of the land.
- The
Court finds pertinent several of the applicant's arguments as regards
the declared public interest in transferring ownership of the land to
the tenants. Notwithstanding, it accepts that in pursuit of its
economic and social policies the respondent State was entitled to
protect in a certain way the interests of the individual gardeners
using the land in allotments. Considering the wide margin of
appreciation which the Contracting States enjoy in similar matters,
the interference with the applicant's rights to peaceful enjoyment of
its possessions cannot be said to have been manifestly without
reasonable foundation. The transfer of ownership complained of was
therefore “in the public interest” within the meaning of
the second sentence of Article 1 of Protocol No. 1.
- It
remains to be determined whether a reasonable relationship of
proportionality existed between the means employed and the aim sought
to be realised.
- Pursuant
to section 11 of Act 64/1997, the compensation payable for plots of
land situated in allotments is to be determined on the basis of the
quality and classification of the land at the time when the
gardeners' right to use it was established. The owners of the land
have the choice between financial compensation thus determined or the
allocation of a different plot of land of corresponding surface area
and quality (section 10(1) of Act 64/1997).
- Both
the value of the applicant's property in 1982 and the value of the
land which it obtained in compensation in 2002 were established
pursuant to a regulation which disregarded the actual value of the
land at the latter time. In this respect the Court attaches
importance to the fact that the value of real property increased
significantly in Slovakia following the fall of the communist regime
and the establishment of a market-oriented economy from the beginning
of the 1990s.
- The
documents available indicate that the market value of the applicant's
land transferred to the gardeners was between SKK 295 and 300 per
square metre at the time of the transfer (see paragraphs 37 and 38
above). For the purpose of proceedings under Act 64/1997 the same
land was valued at between SKK 6.1 and 6.9 at the time when the
gardeners' tenancy was established in 1982 (see paragraph 27 above).
That sum corresponds to less than three per cent of the market value
of the property in 2002. The latter valuation served as a basis
for selection of the land which the applicant association was to
receive in compensation pursuant to section 10(1) of Act 64/1997. In
2006 an expert established the value of the applicant's land, in
1982, at SKK 10 per square metre (see paragraph 37 above).
- It
appears that for general purposes the value of the land which the
applicant association received is higher than the value determined
pursuant to the relevant regulation. Two expert opinions of 2005 and
2006 determined the general value of that land at SKK 110 and 95 per
square metre respectively (see paragraphs 36 and 37 above). Those
sums correspond to approximately one-third of the general value of
the land which was transferred to the gardeners. Furthermore, the
applicant 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 notes that
the land transferred to the tenants has considerable development
potential which the land given to the applicant does not possess.
- In
these circumstances, the question arises whether a fair balance has
been struck between the different interests at stake. While it is
true that Article 1 of Protocol No. 1 does not guarantee a right to
full compensation in all circumstances, the Court takes the view that
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. A sliding scale should be applied
in this respect, balancing the scope and degree of importance of the
public interest against the nature and amount of compensation
provided to the persons concerned.
- In
the present case the ideology and practice of the totalitarian regime
existing in Czechoslovakia until 1989 had prevented the landowners –
members of the applicant association or their predecessors –
from using their property for decades. Following the enactment of the
Land Ownership Act 1991 they were entitled to recover its full
possession after expiry of the compulsory lease. However, the
legislator changed the position by introducing Act 64/1997. As a
result, priority was given to the rights of the tenants in that they
were permitted if they so wished to obtain ownership of the land in
allotments.
- As
to the argument that the value of the land in allotments increased as
a result of the work and investment of the tenants, the Court
considers that this was counterbalanced to a certain extent by the
fact that the tenants could derive benefit from land which they did
not own for a considerable period of time.
- It
is also relevant that, initially, the land was put at the disposal of
the gardeners temporarily and free of charge. This follows from the
lease contract of 24 November 1980, according to which the land of
the applicant's members was to be returned to the lessor, in its
original state, on 31 December 2000 unless the lease had been
extended (see paragraph 15 above). It was only in the 1990s, after
the country's transition to a market-oriented economy, that the
legislation changed and obliged the gardeners to pay a rent to the
owners and the owners to compensate the gardeners for their property
situated on the land in the event of termination of the lease.
- As
to the Government's argument that the compensation payable for the
gardeners' investments would decrease the sum which the applicants
would obtain if they decided to sell their property subsequently, the
Court takes note of the applicant's arguments challenging the actual
value of the gardeners' property. More importantly, section 10(1) of
Act 64/1997 permits the landowners to choose between pecuniary
compensation and allocation of a different plot of land. The above
argument of the respondent Government might have a bearing on the
landowners' choice between the two options, but it cannot serve as an
explanation why the compensation under Act 64/1997 should differ
substantially from the general value of the land transferred to the
gardeners.
- Only
0.22 per cent of the agricultural land in Slovakia has been affected
by consolidation under Act 64/1997. There is no indication that, in
general, the persons using the land in allotments belong to a
socially weak or particularly vulnerable part of the population. As
to the argument that the consolidation of ownership would reinforce
legal certainty, that goal would undoubtedly be attained to a greater
extent if the market value of the land in allotments were taken into
account when determining the compensation payable.
- In
view of the above considerations, the Court is not persuaded that the
declared public interest in pursuing proceedings under Act 64/1997
was 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 obtained in compensation. The effects produced by
application of Act 64/1997 to the present case thus failed to
strike a fair balance between the interests at stake. As a
consequence, the applicant association had to bear a disproportionate
burden contrary to its right to peaceful enjoyment of its
possessions.
- There
has, therefore, been a violation of Article 1 of Protocol No. 1 on
account of the deprivation of the applicant association's property.
B. As regards the compulsory letting of the land
1. Arguments of the parties
(a) The applicant association
- The
applicant submitted that the yearly rent which the gardeners had paid
under the relevant provisions of Act 64/1997 was lower than the real
property tax payable in respect of the land. The interference
complained of had therefore imposed a disproportionate burden on it.
- With
reference to the particular circumstances of the case the applicant
association contested the Government's argument according to which
the land tax should have been paid by the tenants. Firstly, the
wording of section 2(1) of the Real Property Tax 1992 implied that
real property tax was payable by the tenant only where the owner of
the land had let it to the former of his free will. Secondly, that
provision required that the tenancy had lasted or was to last for
five years as a minimum. Those conditions had not been met in the
present case.
(b) The Government
- The
Government admitted that the compulsory letting of the land under
sections 3 et seq. of Act 64/1997 constituted interference with the
applicant's rights under Article 1 of Protocol No. 1.
- Its
purpose had been to ensure respect for the interests of the owners
and gardeners pending a final settlement of the legal relations in
respect of land in allotments in proceedings under Act 64/1997. The
interference had lasted for a limited period of time only. Compulsory
letting under Act 64/1997 applied only to cases where the owners and
tenants had not reached a different arrangement. With reference to
the conclusions of the Constitutional Court and the Court's practice,
the Government argued that a fair balance had been struck between the
general interest and the rights of the landowners.
- With
reference to the applicant's case in particular, the Government also
argued that under the Real Property Tax Act 1992 the land tax was
payable by the tenants, contrary to what the applicant alleged. In
any event, the applicant association had not shown that it had
actually paid the tax charged by the municipality.
2. The Court's assessment
(a) Recapitulation of the relevant principles
- Article
1 of Protocol No. 1 in its second paragraph reserves to the
Contracting States the right to enact and enforce such laws as they
deem necessary to control the use of property in accordance with the
general interest. Such interference with the right of property must
pursue, on the facts as well as in principle, a “legitimate
aim” in the “general interest”. There must also be
a reasonable relation of proportionality between the means employed
and the aim sought to be realised. In other words, the Court must
determine whether a fair balance has been struck between the demands
of the general interest and the interest of the individuals
concerned. In determining whether a fair balance exists, the Court
recognises that the State enjoys a wide margin of appreciation (for
recapitulation of the relevant principles see, for example,
Hutten Czapska v. Poland [GC], no. 35014/97,
§§ 164-168, ECHR 2006 ..., and J.A. PYE (Oxford)
Ltd v. the United Kingdom [GC], no. 44302/02, § 75,
ECHR 2007 ....).
(b) Application of the relevant principles to the
present case
- The
Court notes, and it has not been disputed between the parties, that
the compulsory letting of the applicant's land amounted to a control
of the use of property within the meaning of the second paragraph of
Article 1 of Protocol No. 1, stemming directly from sections 3 and 4
of Act 64/1997. Its purpose was to lay down the conditions under
which the gardeners were entitled to use the land and the amount of
rent payable in cases where those issues were not governed by an
earlier agreement or regulation. The interference therefore
undoubtedly contributed to the legal certainty of the persons
concerned. It was limited in duration pending the outcome of
proceedings concerning the consolidation of ownership which the
tenants were entitled to bring under Act 64/1997. The Court sees no
reason to doubt that the interference pursued a “legitimate
aim” in the “general interest”.
- The
only point at issue is whether or not a fair balance was struck
between the demands of the general interest and the interests of the
applicant association.
- Pursuant
to section 4(1) of Act 64/1997, the rent payable yearly for the use
of land in allotments was ten per cent of its value, as established
under sections 15(5-7) of Regulation 465/1991, as amended, the
minimum amount being SKK 0.3 per square metre.
- The
documents submitted indicate that the rent which the gardeners in the
Váh allotment paid to the applicant
association had been calculated on the basis of that minimum amount,
namely SKK 0.3 per square metre. During that period the Trenčín
municipality charged SKK 0.44 per square metre yearly as tax
on land used for gardening. This fact alone is indicative of the
particularly low compensation which the applicant association
received for letting out its land to the gardeners. In addition, in
the opinion of 21 December 2006 prepared at the applicant's request,
a private company stated that land in the area around the allotment
could be let out for at least SKK 20 per square metre yearly.
- The
Court discerns 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.
- In
their post-hearing submissions the parties concentrated mainly on
whether or not the real property tax was payable by the applicant
association, as the owner of the land, or by the tenants. The amount
of real property tax compared with the rent payable by the tenants is
one of the relevant factors in determining whether a fair balance was
struck between the general interest in compulsory letting of the land
and the applicant's rights under Article 1 of Protocol No. 1. The
fact of who actually paid or had to pay the tax may have a bearing on
the Court's considerations in respect of Article 41 of the
Convention, if appropriate. However, it is not decisive for
determination of the point at issue.
- The
Court therefore concludes 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 (see paragraphs 56, 64 and 65
above) was incompatible with the applicant's right to peaceful
enjoyment of its possessions.
There
has accordingly been a violation of Article 1 of Protocol No. 1 in
this respect.
III. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION
A. Article 46 of the Convention
- Under
this provision:
“1. The High Contracting Parties undertake to
abide by the final judgment of the Court in any case to which they
are parties.
The final judgment of the Court shall be transmitted to
the Committee of Ministers, which shall supervise its execution.”
- The
Court's conclusions as regards the complaints about the transfer of
ownership of the applicant's land and about its compulsory letting
suggest that the violation of the applicant's rights under Article 1
of Protocol No. 1 originated in a problem arising out of the state of
the Slovakian legislation, which has affected a number of landowners
whose land comes under the regime of Act 64/1997. It appears that the
hindrance in obtaining compensation for the transfer of the land in
allotments and in letting out the land at a rent reasonably related
to the value of the property, which the Court has found contrary to
Article 1 of Protocol No. 1, arises from the application of a law to
a specific category of citizens. Several other applications
concerning the same issue are pending before the Court. Without
prejudging the merits of those cases, the above facts indicate that
the problem in issue is of a systemic nature.
-
It has been the Court's practice in similar cases to identify such
systemic problems and their source so as to assist the Contracting
States in finding the appropriate solution and the Committee of
Ministers in supervising the execution of judgments (for further
details see, for example, Scordino v. Italy (no. 1)
[GC] judgment cited above, §§ 229-237, ECHR 2006 ....;
Sejdovic v. Italy [GC], no. 56581/00, §§
119-127, ECHR 2006 ...; Lukenda v. Slovenia,
no. 23032/02, §§ 89-98, ECHR 2006 ... or Scordino
v. Italy (no. 3) (just satisfaction), no. 43662/98, §§
11-16, ECHR 2007 ...).
150. Having
regard to the systemic situation which it has identified, the Court
is of the opinion that general measures at national level appear
desirable in the execution of the present judgment in order to ensure
the effective protection of the right to property in accordance with
the guarantees set forth in Article 1 of Protocol No. 1. Firstly, the
respondent State should remove all obstacles to the letting of land
in allotments on rental terms which take account of the actual value
of the land and current market conditions in the area concerned.
Secondly, the respondent State should remove all obstacles to the
award of compensation for the transfer of ownership of such land, the
amount of which bears a reasonable relation to the market value of
the property as of the date of transfer.
B. 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.”
1. Damage
- Firstly,
the applicant claimed SKK 7,021,246 in respect of pecuniary damage.
That sum corresponds to the difference between the actual value of
the land in the allotment at the time of transfer of its ownership to
the gardeners (SKK 290 per square metre) and the value of the land
which the applicant received in compensation.
Secondly,
the applicant association claimed EUR 17,000 in respect of
non-pecuniary damage. That sum corresponded to EUR 250 for each of
its 68 members.
- The
Government considered that the applicant association had not
correctly calculated the pecuniary damage allegedly suffered. They
invited the Court to adjourn this issue for later examination.
As to
the non-pecuniary damage claimed by the applicant association, the
Government considered the amount excessive.
- In
view of the documents before it, the Court is of the opinion that the
question of the application of Article 41 is not yet ready for
decision and should be reserved, due regard being had to the
possibility that on this point a friendly settlement may be reached
between the respondent State and the applicant (Rule 75 §§
1 and 4 of the Rules of Court).
2. Costs and expenses
- The
applicant claimed EUR 12,639.45 in respect of costs and expenses.
That sum comprised the lawyers' fees (EUR 7,542), travelling,
accommodation and subsistence costs relating to participation in the
hearing in Strasbourg (EUR 3,797.15), the costs of opinions from an
organisation specialised in property valuation and their translation
and the photographing of the allotment (a total of EUR 927.90), as
well as various expenses related to communication with the Court (a
total of EUR 372.40).
- In
the Government's view, the costs of legal representation claimed by
the applicant were excessively high. The Government had no objection
to the other sums claimed with the exception of the costs related to
the opinions prepared by a private company at the applicant's
request. According to the Government, that company was not authorised
to carry out valuations of real property.
- The
Court considers that this part of the applicant's Article 41 claim is
also not ready for decision. It therefore reserves its determination
thereof, due regard being had to the possibility that on this point
also a friendly settlement may be reached between the respondent
State and the applicant (Rule 75 §§ 1 and 4 of the Rules of
Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government's preliminary
objections;
- Holds that there has been a violation of
Article 1 of Protocol No. 1 as regards both the transfer of the
applicant's property to members of the gardening association and the
compulsory letting of the applicant's land on the rental terms set
out in the applicable statutory provisions preceding that transfer;
- Holds that the question of the application of
Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant to submit, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 27 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
