THIRD SECTION
Application no. 48554/10
Mária BOROVSKÁ and Others
against Slovakia
lodged on 16 August 2010
STATEMENT OF FACTS
1. A list of the applicants is set out in the appendix. They are Slovak nationals, live in Košice, and are represented by Mr M. Hrouda, a lawyer practicing in Košice.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The property and context
2. This application and three others (nos. 18803/10, 42812/10 and 44019/11) concern regularisation of the relationships of ownership and use of real property located in the cadastral area Košice-Sever.
3. Certain land in this area was expropriated in the 1980s by the (then socialist) State and a public sports centre was built on it. This sports centre comprises buildings and various other facilities such as, for example, a tennis court, a grandstand, a water station and pavements.
4. After the post 1989 political, constitutional and legal changes, an amount of litigation took place with a view to resolving various property claims of the original owners (or their legal successors) against the entities owning or operating the sports centre or various parts of it.
5. The land concerned is divided into a number of plots having various owners, who are often linked by family relations and history, and who had the same legal representation in the proceedings mentioned. Their lawsuits followed a similar pattern, but sometimes had varying results, and included the following proceedings.
2. The proceedings
6. The applicants in the present case are successors in title to a piece of land in the above-mentioned area, having acquired their title by way of inheritance from the original owner, who died in 1959.
7. On 22 August 1994 the applicants lodged an action at law, directed against a sports club and aimed at obtaining an order for removal of the constructions.
The principal line of argument was that the expropriation decision of 24 February 1984 was invalid in law, as a result of which the applicants were the lawful owners of the land in question, in particular of a plot no. 10610 (recorded on a sheet no. 1460 in the “old” records), and that the defendant, who was the owner of the constructions built on it, had no lawful title for having them on the applicants’ land.
8. The action was subsequently amended in that, alternatively, the applicants sought a judicial ruling establishing an easement on their land for the benefit of the owner of the sports centre in return for financial compensation payable to the applicants. It was also extended in that there were two more defendants, a municipality and a private company.
9. The action was examined and determined at first instance by the Košice I District Court (Okresný súd). In so far as relevant, in its judgment of 24 November 2008, the District Court acknowledged (i) that the expropriation of 1984 was legally ineffective on account of procedural flaws, (ii) that as a consequence the applicants were the owners of the land in question, (iii) that the constructions on it had been built without a valid legal title in so far as the underlying land was concerned, (iv) and that the applicants were entitled to seek redress under general civil law, that is to say Article 135c of the Civil Code (Law no. 40/1964 Coll., as amended), which was not subject to statute of limitation, as opposed to special legislation on restitution, which contained specific time-limits.
10. The court further held that, for practical reasons, it was out of question to regularise the situation by establishing the applicants as the owners of the constructions and ordering them to pay the current owners financial compensation. Furthermore, in the circumstances, it was likewise not practical to order a physical removal of the constructions in question.
11. However, contrary to the applicants’ assertions, the court found that no easement could be established on the land. The bone of contention was the legal nature of the constructions concerned. Unlike in construction law, in civil law these constructions could not be considered as buildings in legal terms. An easement over land could however only be established for the benefit of the owner of a building. In that respect, the courts relied on Article 135c § 3 of the Civil Code (Law no. 40/1964 Coll., as amended).
12. On 11 February 2010, following the applicants’ appeal, the Košice Regional Court (Krajský súd) upheld the first-instance judgment, albeit on different grounds. It concurred with the District Court that the expropriation of 1984 was legally ineffective. As a consequence, the State was to be looked upon as having taken the land in question without a legal title. Restitution of land in such circumstances fell under the regime of special legislation on restitution, which the applicants had failed to use. Asserting their property rights as the applicants did, under general civil law, was not permissible.
3. Final domestic decision
13. On 5 May 2010 the applicants lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 § 1 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). They alleged a violation of their rights under, inter alia, Article 6 § 1 of the Convention (access, fairness, adequate reasoning) and the constitutional equivalent of Article 1 of Protocol No. 1 and considered the dismissal of their action arbitrary. Among other things, they invoked varying judicial practice, including a number of other sets of proceedings concerning the same sports centre, in which the application of general civil law in an identical context had been permitted. They specifically invoked a previous judgment of the Supreme Court (Najvyšší súd), in which the application of general civil law following the legally ineffective expropriation of 1984 was specifically envisaged (see paragraphs 16 and 17 below in part “Relevant domestic law and practice”).
14. On 3 June 2010 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It observed that it was no court of further appeal against decisions of the ordinary courts and found no constitutionally relevant unfairness, arbitrariness or irregularity in the impugned judgments. The applicants’ argument concerning the differing judicial practice went unanswered.
The decision was served on the applicants’ lawyer on 30 July 2010.
B. Relevant domestic law and practice
15. Article 135c of the Civil Code deals with situations concerning so‑called unlawful constructions, that is “buildings” constructed on somebody else’s plot without an entitlement to do so.
In respect of such buildings, upon a request of the owner of the plot, the court has the power to order the removal of the building at the costs of the person who construed it (paragraph 1).
However, if the removal of the building is not practical, and subject to consent by the owner of the plot, the court has the power to rule that the title in the building should be transferred to the owner of the plot in return for compensation (paragraph 2).
The court also has the power to regularise the relationships between the owner of the plot and the owner of the building by taking other measures, in particular by establishing an easement, which is necessary for the exercise of the ownership rights in respect of the building, in return for compensation (paragraph 3).
16. In a judgment of 13 March 2002, which became final on 3 May 2002, in case no. 15C 251/94 brought by a different set of claimants, the District Court allowed an action for a ruling to establish an easement for the benefit of the municipality over other lots of land serving the same sports centre as a tennis court and related facilities.
Just like in the applicants’ case, it was found that the respective expropriation in the 1980s was without any legal effect. The claimants were thus the owners of the land and the defendant had no title to have their facilities on the claimants’ land. This discrepancy was to be regularised under Article 135c § 3 of the Civil Code by establishing an easement, while the issue of compensation payable for it was to be determined in a separate set of proceedings. It did, by the District Court on 13 December 2006 in case no. 15C 717/02, when an order was issued for financial compensation of the plaintiffs on the basis of an expert assessment.
17. The judgment of 13 March 2002 was preceded by a judgment of the Supreme Court of 25 February 1999 ruling on an appeal on points of law no. 3Cdo 96/99 in the previous course of the proceedings. In that judgment, the Supreme Court held that if the original owners of the land concerned had died prior to the contested expropriation, and taking into account that in Slovakian law an estate passes onto the heir at the moment of the decedent’s death, the expropriation could not have any legal effect as long as it had been directed against the decedents, who at the given time were no longer alive. In those circumstances, a claim for an easement in return for financial compensation brought by the heir of the original owner of the land against the owner of the construction built on such land was therefore to be examined under general civil law.
COMPLAINTS
18. The applicants complain under Article 6 § 1 of the Convention that the proceedings in their action were unfair in that the action was arbitrarily dismissed and in that the courts failed to give any response to the argument that, in other cases in an analogous situation, the courts including the same District Court had and the Supreme Court had reached a different conclusion. Under the same provision, they also complain that the length of the proceedings in their action was unreasonable.
19. For similar reasons, the applicants also alleged a violation of their rights under Article 1 of Protocol No. 1.
20. The applicants lastly complain under Article 1 of Protocol No. 12 that they have been discriminated against without any acceptable justification in relation to the other claimants, referred to above, and in relation to other real property owners in conceptually similar situations, for whom a special legal regime has been created allowing for the establishment of an easement (e.g. land below highways).
QUESTIONS TO THE PARTIES
1. In view of the alleged discrepancy in decision-making concerning the same issue and the alleged lack of any judicial answer to crucial arguments concerning that discrepancy, did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
In particular, was the reasoning of the domestic courts and especially the Constitutional Court adequate (see, for example, Ruiz Torija v. Spain, 9 December 1994, § 30, Series A no. 303 A) and was the principle of legal certainty respected (see, for example, mutatis mutandis, Popov v. Moldova (no. 2), no. 19960/04, §§ 44‑46, 6 December 2005)?
2. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference necessary in terms of that provision?
Appendix
Ms Mária BOROVSKÁ, who was born in 1948, Ms Mária BUZOVÁ, who was born in 1937, Mr Štefan FORRAI, who was born in 1927.
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