SILASOVA AND OTHERS v. SLOVAKIA - 36140/10 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 591 (28 June 2016)

In the case of Silášová and Others v. Slovakia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Luis López Guerra, President,
          Helena Jäderblom,
          Johannes Silvis,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 7 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 36140/10) 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 twenty Slovak nationals, whose particulars are set out in the appendix (“the applicants”), on 3 June 2010.

2. The applicants were represented by Mr M. Polakovič, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

3. The applicants alleged that their rights under Article 1 of Protocol No. 1 had been violated as a result of the compulsory letting of their land under the Use of Plots and Regularisation of their Ownership in Allotment Gardens Act (Law no. 64/1997 Coll. - “the Allotments Act”).

4. On 13 May 2013 the above complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants all live in Žilina, except for Mr Kyška, Mr P. Lalinský and Ms Vestfálová, who live in Turie, Bytča and Nemecká nad Hronom respectively.

6. The facts of the case are structurally similar to those obtaining in the cases against Slovakia of Urbárska Obec Trenčianske Biskupice (no. 74258/01, 27 November 2007 (merits) and 27 January 2009 (just satisfaction)), Jenisová (no. 58764/00, 3 November 2009), Šefčíková (no. 6284/02, 3 November 2009), and Salus (no. 28697/03, 3 November 2009).

A. Status of the applicants’ property

7. The applicants are the owners of land situated in the cadastral area of Závodie on the territory of the municipality of Žilina. They acquired title to this land by way of inheritance from their predecessors.

8. In 1948 the State put the land in question at the disposal of an agricultural cooperative called Mier Žilina-Bánová. In 1987 the cooperative designated part of the land as an “allotment colony”, consisting of individual allotments which were put at the disposal of private third parties (“the gardeners”).

9. The applicants’ ‒ or, at the relevant time, their predecessors’ ‒ formal title to the land has remained unaffected but in practice, they have not been able to make use of it at all. The size of each of the applicants’ individual parcels of land thereby affected is listed in column C of the appendix.

10. In the context of the political changes in the former Czechoslovakia, the Land Ownership Act (Law 229/1991 Coll.) was enacted in 1991. Under section 22(2) thereof, in the absence of any agreement to the contrary with the applicants, the gardeners acquired a tenancy right in respect of the land in question with effect from the date of the Act’s entry into force.

11. The rent payable for such tenancy was regulated under section 22(3) of the Land Ownership Act until this provision was replaced by the Allotments Act, which entered into force on 26 March 1997.

12. The Allotments Act likewise imposed a compulsory tenancy arrangement in favour of the gardeners, the rent being regulated by its section 4, which applied by operation of law unless the parties had agreed otherwise. This provision, as applicable at that time, referred to other pieces of legislation which set the annual rent at ten per cent of the value of the property ‒ calculated on the basis of the then applicable price regulations ‒ the minimum being equivalent to 0.01 Euro (EUR) per square metre and per year.

13. In the applicants’ case, with the exception mentioned below, no such separate agreement had been reached between the parties, and the annual rent payable by the gardeners to the applicants was thus determined under the statutory rules at the lowest limit of the applicable scale, that is to say at a rate of EUR 0.01 per square metre. In the case of the applicant Ms L. Kothajová, an agreement was reached that, as from 2004, she would be paid rent equivalent to EUR 0.01168 per square metre and per year.

14. The applicable statutory regime was amended ‒ after the Court’s above-mentioned judgments had become final ‒ with effect from 1 April 2011 by Law no. 57/2011 Coll., which adjusted the rent payable to owners in a situation such as the applicants’ to a level commensurate with the market rent.

By virtue of the statutory amendment, the amount of the rent was to be determined under the Regulation of the Ministry of Justice on Determination of the General Value of Property (no. 492/2004 Coll.). This regulation uses the term “general value” ‒ which is understood to mean the expert assessment of the most likely price at a given place and time on the market in conditions of free competition and honest sale ‒ and lays down formulae for the determination thereof in relation to land and the rent payable for that land, the latter being linked to the former. These formulae take into account what is known as the “general situation index” (“the GSI”), ranging originally from 0.70 to 2.00, normally depending on the geographical location of the property.

However, prior to the entry into force of the amendments introduced by Law no. 57/2011, Regulation 492/2004 had been amended by Regulation no. 254/2010 Coll., which took effect from 1 July 2010. The latter Regulation introduced a special GSI ranging from 0.50 to 0.70 to be applied when determining the “general value” of land and the “general value” of the rent for the land in allotment colonies.

15. These amendments left the compulsory tenancy introduced by the Allotments Act unaffected. Such a tenancy arrangement remains in place until the completion of what are known as land consolidation proceedings in a given area. Such proceedings are also provided for under the Act, their aim being to have the ownership and use of the land in the allotment area consolidated, principally by transferring title to the land to the gardeners and having the former owners compensated by means regulated under the Act, the details of such consolidation being defined in what is known as a “land consolidation project”.

16. In the applicants’ case, the gardeners initiated the requisite land consolidation proceedings on 7 December 1998. Within the framework thereof, the order had been given for implementation of a “land consolidation project”, but the proceedings changed course on 7 August 2013 when the Constitutional Court held that the applicants’ inability to have that order reviewed by the courts violated their right of access to a court and their property rights.

The land consolidation proceedings are currently pending, at a stage where the general value of the applicants’ land remains to be determined.

17. The compulsory tenancy of the applicants’ land persists.

B. Value of the applicants’ property

18. The parties disagreed as to the amount of rent payable for the applicants’ property. Their positions and the documents submitted in their support may be summarised as follows.

19. The applicants relied on report no. 05/2010 dated 29 March 2010, in which a sworn expert, A, estimated the general value of the rent in question by reference to the criteria laid down in Regulation no. 492/2004, and applied a GSI of 1.30. On that basis, the applicants considered that the market value of the annual rent amounted to EUR 2.66 per square metre.

Later, the applicants also submitted report no. 169/13 dated 5 November 2013 by another sworn expert, B, according to which the general value of monthly rent for a plot in the stated area belonging to the applicant Mr Leščinský was EUR 0.773 in 2013, EUR 0.782 in 2012, EUR 0.789 in 2011 and EUR 0.752 in 2010. These figures had been estimated on the basis of Regulation no. 492/2004, taking into account the GSI resulting from the amendments introduced by Regulation no. 254/2010.

20. The Government for their part submitted the following documents:

‒ A letter from the Forensic Engineering Institute in Žilina dated 17 December 2012, in which the Institute pointed out what they considered to be methodological flaws in the calculations of expert A. On the basis of their pro forma recalculation of the available data, the value of the annual general rent would be EUR 0.239 per square metre. However, the letter points out that this recalculation was done without a separate in situ investigation and without the examination of further documents that the Institute considered essential.

‒ A letter from the Slovak Real Estate Fund dated 24 April 2013 stating that, at that time, expert valuations of the general value of the land had been obtained for fourteen allotment colonies in the district of Žilina. On the basis of the general value of the land as established in these valuations, which took into account legislative amendment no. 57/2011, the Government contended that the average general value of the annual rent payable for land comparable to the applicants’ was EUR 0.38.

‒ A full expert report drawn up by the Institute in 2014, numbered 86/2014, which had been preceded by the Institute’s own investigations. In this report, drawn up on the basis of amended Regulation no. 492/2004, the Institute calculated the general value of the annual rent payable for the property in question as of 31 March 2014 as EUR 0.718 per square metre.

The method provided by Regulation no. 492/2004 could not be used in relation to the preceding periods. In these cases, the Institute assessed the general value of the annual rent for previous years ‒ on the basis of the results for the year 2014, but taking into account the general development of real estate prices in the given region and other economic criteria during those years ‒ as follows: in 2013 EUR 0.716, in 2012 EUR 0.746, in 2011 EUR 0.732, in 2010 EUR 0.745, in 2009 EUR 0.790, in 2008 EUR 1.084, and in 2007 EUR 0.804.

Lastly, the Institute reiterated the objections concerning the methodology used in the valuation produced by expert A and expressed the view that he had lacked the requisite qualifications for conducting the particular type of valuation obtaining in the present case, since his qualifications pertained only to agricultural land, and did not extend to include the type of land concerned in the present case.

II. RELEVANT DOMESTIC LAW AND PRACTICE

21. The relevant constitutional rules and the Constitutional Court’s practice in the application thereof, as well as the relevant statutory rules, are set out in the Court’s judgment in Jenisová (cited above, §§ 33 et seq., with further references), amongst others.

22. In addition, section 3(5) of the the Allotments Act addresses the possibilities and consequences of terminating a compulsory tenancy under the Act by serving notice. Over and above other conditions and restrictions, it provides that such a tenancy may be terminated by notice only if the land consolidation proceedings have not yet commenced.

23. In a judgment of 26 October 2010 in (unrelated) case no. 6 Sžo 400/2009, the Supreme Court quashed the lower court’s judgment in which the latter had dismissed an administrative-law action challenging administrative decisions approving the implementation of a land consolidation project in an allotment colony.

In this judgment the Supreme Court referred to the Court’s judgments in the case of Urbárska Obec Trenčianske Biskupice (cited above) and, in particular, its findings as regards both the unacceptably low level of compensation for the owners whose land had been subject to land consolidation under the Allotments Act and the unacceptably low level of rent for the compulsory letting of their land under that Act.

The Supreme Court noted that, under Article 46 of the Convention, Slovakia had a duty to implement those judgments and that, under Article 7 § 5 of the Constitution, Protocol No. 1 had precedence over statute.

The Supreme Court further observed that the compensation payable under the Allotments Act to the owners in the case in question was symbolic and that, in the light of the Court’s case-law, it was necessary to examine whether, on the facts of that case, a fair balance had been struck between the various interests at stake. By failing to examine these aspects of the case, the lower court had assessed the case incorrectly.

The Supreme Court therefore quashed the contested judgment and remitted the case to the lower court for re-examination.

III. IMPLEMENTATION OF THE COURT’S JUDGMENT IN THE CASE OF URBÁRSKA OBEC TRENIČIANSKE BISKUPICE

24. In the relevant part of its judgment on the merits of the above case, the Court found that:

“148. [Its] conclusions as regards [...] [the] compulsory letting [of the applicant’s land] 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 Slovakian legislation, which has affected a number of landowners whose land comes under the regime of [Allotments Act]. It appears that the hindrance 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.

...

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 allotment gardens on rental terms which take account of the actual value of the land and current market conditions in the area concerned. ...”

25. In its Resolution CM/ResDH(2013)87, adopted on 7 May 2013, the Committee of Ministers of the Council of Europe declared that it had exercised its functions under Article 46 § 2 of the Convention in both the case in question and the other cases identified in paragraph 6 above, and decided to close the examination thereof.

It did so having examined Slovakia’s action report of 5 March 2012. The part of the report concerning the general measures taken in response to the Court’s pronouncements under Article 46 of the Convention in the judgment on the merits of Urbárska Obec Trenčianske Biskupice read as follows:

“Therefore two legislative amendments were adopted at national level. On 8 February 2011, the National Council of the Slovak Republic adopted the amendment of the [Allotments Act] and the Ministry of Justice of the Slovak Republic adopted the amendment of its [Regulation No. 492/2004]. As a result of these general measures, the rental terms for the letting of land in garden allotments are able to take into account the actual value of the land and the current market conditions and compensation for the transfer of ownership of land has a reasonable relation to the market value of the property at the time of the transfer (see Annex for more details).”

THE LAW

I. SCOPE OF THE CASE

26. The Court notes: that the present application concerns the compulsory letting of the applicants’ land; that this letting fell within the ambit of several statutory frameworks; that the object of the present application is the compulsory letting of the applicants’ land under the Allotments Act; and that the rules determining the amount of rent payable for a compulsory lease under that Act changed substantially in the course of the implementation of the Court’s judgments in Urbárska Obec Trenčianske Biskupice.

27. The Court observes that, although the applicants in their observations on this case express criticism as to the method for establishing the value of rent payable for the letting of their property under the Allotments Act, as amended by Law no. 57/2011 (see paragraph 45 below), they do not actually appear to be wishing to contest the compulsory letting of their land in so far as it fell under the Act after its said amendment.

This appears to be so because they have not specified any difference between the rent to which they are entitled under that amendment and the market rent, and they have formulated their just satisfaction claims solely in respect of the compulsory letting of their property prior to that amendment (see paragraph 59 below).

28. In these circumstances, and without prejudice to the assessment of legislative amendment no. 57/2011 by the Committee of Ministers of the Council of Europe in the context of implementation of the Court’s judgments in the case of Urbárska Obec Trenčianske Biskupice and the other related cases, it considers the present application limited to the compulsory letting of the applicants’ land under the Allotments Act as in force up until 31 March 2011.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

29. The applicants complained that the compulsory letting of their land had been contrary to their rights as protected under Article 1 of Protocol No. 1, which reads:

“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. Admissibility

30. The Government objected that the application was inadmissible because the applicants had failed to respect the requirements under Article 35 § 1 of the Convention to exhaust all domestic remedies and to submit their application within the six-month time-limit.

On the former count, the Government contended that, following the Court’s judgments in Urbárska Obec Trenčianske Biskupice, it was open to the applicants to claim rent according to the principles established by those judgments, if need be before a court and ultimately before the Constitutional Court. This possibility had in their view been confirmed in the Supreme Court judgment of 26 October 2010 in an unrelated case (see paragraph 23 above).

On the latter count the Government considered that the six-month time-limit had commenced when the Court’s judgment on the merits of Urbárska Obec Trenčianske Biskupice became final. As the application had been introduced more than six months after that date, it was in the Government’s view belated. In support of that contention, the Government reiterated the argument that it was possible to invoke that judgment in a claim for appropriate rent, just as it was possible to rely on it in the land consolidation proceedings.

31. The applicants disagreed and submitted that Slovakia had been bound to implement the Court’s judgments in Urbárska Obec Trenčianske Biskupice but had made no attempt to do so until legislative amendment no. 57/2011. In particular, the authorities in charge of the land consolidation proceedings had repeatedly ignored any argument based on the Urbárska Obec Trenčianske Biskupice judgments.

Moreover, the applicants considered that the Supreme Court judgment of 26 October 2010 which the Government had relied on in their observations was a one-off occurrence offering no reasonable guarantee that a similar line of argument would be accepted in the context of a claim for appropriate rent for the gardeners’ use of their land.

32. The Court notes that the Government’s objections revolve around the contention that, on the basis of the Court’s judgments in Urbárska Obec Trenčianske Biskupice, the applicants could have claimed an appropriate level of rent for the use of their land, as had done the land-owners in another allotment colony referred to in the Supreme Court judgment of 26 October 2010.

33. In so far as the Government use that premise to argue that, by failing to take that course of action, the applicants had failed to exhaust the domestic remedies, the Court reiterates first of all that the assessment of whether or not domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see, for example, Salus, cited above, § 41, with further references).

Nevertheless, even if there were reasons justifying a departure from that general rule in the present case, the Government’s objection cannot be upheld for the following reasons.

34. In its judgment on the merits of the case of Urbárska Obec Trenčianske Biskupice, the Court found a violation of Article 1 of Protocol No. 1 on account of both the transfer of the applicant’s property and its compulsory letting under the terms of the Allotments Act, as in force at that time. At the same time, in the section of its judgment referring to Article 46, the Court observed that the problem behind the violations found was of a systemic nature and identified general measures that needed to be taken in order to implement the judgment (see paragraphs 133, 146, 148 and 150 of that judgment).

Subsequently, in its judgment on just satisfaction, the Court awarded a lump sum in respect of pecuniary damage in connection with the transfer of ownership of the applicant’s land, having taken into account a number of considerations. However, as the applicant had failed to claim any specific sum in respect of pecuniary damage resulting from the compulsory letting of its land, no award was made in this respect (see paragraphs 13 and 18 of that judgment).

35. The Court observes in particular that the implementation of the judgment on the merits was a matter for the Government (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 233, ECHR 2006-V, with further references) and, as the Committee of Ministers of the Council of Europe has concluded (see paragraph 25 above), in terms of general measures it was achieved by way of legislative amendments.

36. In these circumstances, and in so far as the first part of the Government’s objection has been substantiated, the Court finds no indication that, in the absence of any implementing legislation, its judgments in Urbárska Obec Trenčianske Biskupice could be directly ‒ judicially or administratively ‒ transposed in Slovakia in the eventuality of a claim for appropriate rent for use of the applicants’ land.

37. As to the Supreme Court judgment of 26 October 2010, by which the Government sought to illustrate their argument, the Court notes that it related to land consolidation in the given area rather than to the question of rent. Although these two matters are interlinked, there is nothing in the cited judgment directly suggesting that the relevant part of its reasoning can be applied in relation to rent.

In particular, it is to be noted that loss of title to land by means of land consolidation is an instantaneous act and that compensation for such loss is addressed in the later stages of land consolidation proceedings, whereas the impugned compulsory tenancy is a continuous situation and the question of the rent payable for such tenancy is pertinent at any stage of its existence. By extension, it can be argued that the impugned tenancy existed even before the Urbárska Obec Trenčianske Biskupice judgments, and the Supreme Court judgment of 26 October 2010 by no means suggests the possibility of claiming appropriate rent retrospectively.

38. Moreover, it is to be noted that, although the judgment of 26 October 2010 quashed a previous decision and remitted the matter to the lower court for re-examination, no information has been made available to the Court as to how that judgment was implemented in the subsequent course of the proceedings. In addition, there is no indication that that judgment or the reasons behind it have been relied on by Slovakian courts on any other occasion.

39. In these circumstances, the Court concludes that the Government have failed to show that a claim for appropriate rent on the basis of the Court’s judgments in Urbárska Obec Trenčianske Biskupice was available to the applicants not only in theory but in practice, with reasonable prospects of success, and that it was a remedy to be exhausted for the purposes of Article 35 § 1 of the Convention. The first part of their objection must accordingly be dismissed.

40. The Court observes that its conclusion in the preceding paragraph concerns the very specific circumstances of the present case and accordingly has no impact on the conclusions of the Committee of Ministers of the Council of Europe in its Resolution CM/ResDH(2013)87.

41. As to the second limb of the Government’s objection, the Court considers that it appears to restate an aspect of the issue of exhaustion of domestic remedies rather than to constitute a separate problem concerning the applicants’ compliance with the six-month time-limit. As the Court has found above, the present application is directly concerned with the compulsory letting of the applicants’ land under the Allotments Act as in force up until 31 March 2011. Having been introduced on 3 June 2010 (see paragraphs 1 and 28 above), it poses no issues under the six-month rule.

The remainder of the Government’s objection must, accordingly, likewise be dismissed.

42. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Parties’ arguments

43. The applicants complained about the compulsory letting of their land, arguing in particular that the rent which they were entitled to obtain under the Allotments Act, as in force until 31 March 2011, was disproportionately low and had been determined with blatant disregard as to the land’s actual value. In further observations, they argued that the object of their application was the difference between the rent to which they were entitled under the Allotments Act and the rent that they considered appropriate, on the basis of the valuation of expert A.

44. The Government made several submissions, which may be summarised as follows:

- They accepted that the compulsory tenancy amounted to a form of control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1, argued that this interference obviously pursued a “legitimate aim” in the “general interest”, and considered that the only open question was whether or not a fair balance had been struck between the general interest and the interests of the applicants.

- As to that open question, the Government “took into account” the Court’s conclusions in Urbárska Obec Trenčianske Biskupice, but vehemently disagreed with the applicants’ assessment of the extent of the burden that they allegedly had to bear in the present case.

- In so far as the applicants had relied on the valuation produced by expert A, who estimated the actual value of the annual rent for the applicants’ land at EUR 2.66 per square metre, the Government contested the expert’s qualifications and considered that the reliability of his valuation was compromised by its extremely stark contrast with that of expert B, who had estimated a value of EUR 0.77 per square metre in 2013.

- Relying on data from the Slovak Real Estate Fund, the Government contended that ‒ subsequent to legislative amendment no. 57/2011 ‒ the average value of annual rent for land comparable to the applicants’ was EUR 0.38 per square metre (see paragraph 20 above).

- The Government pointed out that Article 1 of Protocol No. 1 does not guarantee the right to full compensation in all circumstances and concluded that they would leave the ultimate assessment of the case in the Court’s hands.

45. The applicants also made several observations, the content of which may be summarised as follows:

- They relied principally on the valuation of expert A, insisting that both his qualifications and methodology were beyond reproach. In so far as there may have been any ambiguity in the rules regarding the qualifications of sworn experts, these should not be interpreted to the applicants’ disadvantage.

- The applicants pointed out that, prior to legislative amendment no. 57/2011, which introduced the valuation of land and rent in the context of the Allotments Act under Regulation no. 492/2004, that regulation had itself been amended by Regulation no. 254/2010 introducing a GSI of between 0.50 and 0.70 in respect of valuations of land and rents in allotment colonies. As a result, calculations under the new method produced valuations from thirty to fifty per cent lower than they would have been prior to the amendments introduced by Regulation no. 254/2010. The applicants considered that there had been no pressing need for such a reduction and argued that it had been both unfair and discriminatory because it had been selective.

- As to the discrepancy between the valuations given by experts A and B, the applicants submitted that it could be attributed precisely to the special GSI introduced by legislative amendment no. 254/2010. While expert A had valued the property prior to the introduction of the special GSI, expert B had done so afterwards, taking the special GSI into account.

- With regard to the difference between the valuation of expert A and that of the Institute, the applicants pointed out firstly that expert A had valued the property as it was in 2010, while the Institute had done so as it was in 2014. Secondly, they drew attention to the Institute’s own admission that the valuation method used did not permit retrospective valuations, as a result of which the rent for the previous years had been assessed by alternative means that were not provided for in the applicable statute. Furthermore, they explained that expert A had used a GSI of 1.30, which was permissible under Regulation no. 492/2004, prior to legislative amendment no. 254/2010, while the Institute had used a GSI of 0.70, which fell within the special range applicable under the amendment.

- Lastly, the applicants contended that the fact that land consolidation proceedings were pending was in itself a legal obstacle to any possibility of terminating the compulsory tenancy by notice, and that since these proceedings had been pending since 7 December 1998, the said obstacle had existed for more than seventeen years.

2. The Court’s assessment

46. The Court reiterates that 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 relationship of proportionality between the means employed and the aim pursued. 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 (see Urbárska Obec Trenčianske Biskupice, cited above, § 139, with further references).

47. The Court notes, and it has not been disputed between the parties, that the compulsory letting of the applicants’ land amounted to a form of control of the use of property, within the meaning of the second paragraph of Article 1 of Protocol No. 1, stemming directly from the Allotments Act. 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 those involved. It was limited in duration pending the outcome of proceedings concerning the consolidation of ownership which the gardeners could and actually did commence under the Allotments Act. The Court finds that, in these circumstances, the interference pursued a “legitimate aim” in the “general interest”, and that 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 applicants.

48. In Urbárska Obec Trenčianske Biskupice (§§ 142-146), similarly to the other allotment colonies cases cited above, the Court held that the applicant had been awarded particularly low compensation in return for letting its land to the gardeners. It discerned no elements of 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 applicant association’s land 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.

49. In the present case, it is not disputed between the parties that, under the Allotments Act, as applicable at the relevant time, the applicants were entitled to rent of EUR 0.01 per square metre and per year. As to the applicant Ms L.Kothajová, her rent with effect from 2004 was determined by a contract, concluded within the existing statutory framework, at the equivalent of EUR 0.01168.

50. However, the parties strongly disagreed as to the market rent for the applicants’ land. They relied on expert evidence, the Government contesting the qualifications and calculation method used by one of the applicants’ experts.

51. In concrete terms, on behalf of the applicants, in 2010 expert A estimated the value of the annual rent for the applicants’ property at EUR 2.66 per square metre, while in 2013 expert B estimated it for the period between 2010 and 2013 at an average of EUR 0.774 per square metre.

52. As to the figures submitted by the Government, a pro forma recalculation by the Institute in 2012 of the data available to expert A produced an annual rent of EUR 0.239 per square metre, whilst a calculation based on data from the Slovak Real Estate Fund in 2013 produced an average rent of EUR 0.38 per square metre and per year, and the rent estimated in the Institute’s 2014 report for that year was EUR 0.718. The average annual rent for the years 2007 to 2013 was EUR 0.8024 per square metre and per year on the basis of the estimated figures in the same report.

53. With regard to the pro forma recalculation by the Institute in 2012, resulting in the figure of EUR 0.239, the Court finds its relevance undermined by the Institute’s own admission that it had been carried out without the necessary inspection and checks.

54. The parties’ submissions on the question of appropriate annual rent for the applicants’ property may thus be said to range, over the relevant period, from EUR 0.38 to EUR 2.66, with figures between EUR 0.70 and EUR 0.80 prevailing.

55. As to the amount at the upper level of this range, as established by expert A, the Court observes that the Government have contested the technical qualifications of and calculation methods used by the expert in question. Similarly, in so far as the Institute established in 2014 the value of rent for the precedent years, the applicants challenged the methodology used.

In that regard, the Court considers it open to question to what extent it is its task as an international tribunal to consider separately such matters. However, for the following reasons, it considers it unnecessary to resolve these questions in the present case.

56. Assuming that the appropriate annual rent for one square metre of the applicants’ land was the lowest of the figures admitted by the Government and considered by the Court as relevant, that is to say EUR 0.38, the rent to which they were actually entitled, namely EUR 0.01, represents less than three per cent of that amount. There is no indication that any market-related factors were taken into account for the purpose of determining the rent payable to the applicants and the Court sees no justification for such a discrepancy.

57. The foregoing considerations are sufficient to enable the Court to conclude that, as in Urbárska obec Trenčianske Biskupice and the other similar cases cited above, the conditions of the compulsory letting of the applicants’ land on the basis of the Allotments Act, as in force until 31 March 2011, infringed their right to peaceful enjoyment of their possessions.

There has accordingly been a violation of Article 1 of Protocol No. 1.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

58. 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

59. The applicants claimed pecuniary damage in respect of the compulsory letting of their land under the Allotments Act, as applicable up until 1 April 2011. They based their calculation on the annual rent per square metre, as established by expert A (EUR 2.66), less the amount to which they were entitled under the applicable statutory regime (EUR 0.01), multiplied by the surface area (in total 13,677 square metres), thereby arriving at a figure of EUR 36,244 per year, that amount then being multiplied by the number of years involved (fourteen ‒ from 1 March 1997 until 31 March 2011).

They also claimed EUR 200 each in respect of non-pecuniary damage.

60. In their observations of 19 December 2013, the Government asked that the Court adjourn consideration of the issue of pecuniary damage to a later stage and that they be allowed additional time to obtain and submit a fresh expert valuation of the rent in question. As for non-pecuniary damage, they considered that, in the event of the finding of a violation of the applicants’ rights, the finding itself should constitute sufficient compensation.

61. The Court for its part notes first of all that, following their observations in 2013, the Government were allowed to obtain and submit in 2014 a new expert report by the Institute concerning the actual value of the rent in issue (see paragraph 20 above). In addition, it observes that there has been no indication of any agreement between the parties on the question of just satisfaction in respect of pecuniary damage. It therefore considers this question ready for decision.

62. As has been noted above, there are varying expert assessments as to the actual value of rent payable for the use of the applicants’ property in the relevant period. By the nature of things, this value has been evolving over time, and assessments in the realm of EUR 0.70 and EUR 0.80 appear to prevail (see paragraph 54 above).

63. In that regard, the Court reiterates that, where as in the present case the basis of the violation found was the failure to strike a fair balance between public interest and the individual’s rights rather than illegality, just satisfaction in respect of pecuniary damage need not necessarily reflect the wish to eradicate 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).

64. Taking into account this case-law and all the circumstances, including the respective acreage, the length of the compulsory tenancy and the location of the property, and having reference to its assessment of pecuniary damage in Jenisová (cited above, § 81) and Šefčíková (cited above, § 95), the Court considers it reasonable to award the applicants EUR 67,030, as set out in column D of the appendix.

65. At the same time, ruling on an equitable basis, the Court considers that the applicants’ claim in respect of non-pecuniary damage should be awarded in full. It accordingly awards each of the applicants EUR 200, plus any tax that may be chargeable, in respect of non-pecuniary damage.

B. Costs and expenses

66. The applicants also claimed, jointly, EUR 2,465.27 in respect of legal fees, fees for the expert valuations, administrative fees, and postal, travel and administrative expenses. Of this amount, EUR 977 is for the valuation by expert A.

67. The Government contested the costs of the valuation by expert A, reiterating their objection with regard to his qualifications.

68. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).

In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 2,000, plus any tax that may be chargeable to them, covering costs under all heads.

C. Default interest

69. The Court considers it appropriate that the default interest rate 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,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 1 of Protocol No. 1 as a result of the conditions of the compulsory letting of the applicants’ land on the basis of the Allotments Act, as in force until 31 March 2011;

3. Holds

(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 67,030 (sixty-seven thousand and thirty euros) in respect of pecuniary damage (paragraph 64 and column D of the appendix);

(ii) EUR 200 (two hundred euros), plus any tax that may be chargeable, to each of the applicants in respect of non-pecuniary damage;

(iii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to them, to the applicants jointly in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 28 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

APPENDIX

	A. Applicant’s name	B. Born	C. Property / m²	D. Award / EUR
1.	Ms Anna BRNOVÁ	1940	118	580
2.	Mr Anton DORČÍK	1945	118	580
3.	Mr Tomáš DORČÍK	1990	118	580
4.	Mr Jaroslav DORČÍK	1956	878	4,300
5.	Ms Jolana DORČÍKOVÁ	1942	118	580
6.	Ms Daniela FTORKOVÁ	1948	836	4,100
7.	Mr Rudolf HARZEK	1962	263	1,290
8.	Ms Anna HUBOČANOVÁ	1964	1,647	8,070
9.	Ms Lýdia KOTHAJOVÁ	1944	856	4,190
10.	Ms Eva KUBOVÁ	1938	878	4,300
11.	Mr Peter KYŠKA	1946	236	1,160
12.	Ms Berta LALINSKÁ	1938	804	3,940
13.	Mr Peter LALINSKÝ	1946	201	980
14.	Mr Imrich LEŠČINSKÝ	1946	1,535	7,520
15.	Ms Marta SEDLÁČKOVÁ	1945	1,026	5,030
16.	Ms Jozefa SILÁŠOVÁ	1947	13	60
17.	Mr Peter ŠKULEC	1979	162	790
18.	Ms Kornélia ŠOŠKOVÁ	1947	236	1,160
19.	Ms Darina ŠTEFANATNÁ	1946	3,400	16,660
20.	Ms Jarmila VESTFÁLOVÁ	1936	236	1,160

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You are here: BAILII >> Databases >> European Court of Human Rights >> SILASOVA AND OTHERS v. SLOVAKIA - 36140/10 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 591 (28 June 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/591.html Cite as: [2016] ECHR 591