CASE OF BOROVSKÁ AND FORRAI v. SLOVAKIA

THIRD SECTION

CASE OF BOROVSKÁ AND FORRAI v. SLOVAKIA

(Application no. 48554/10)

JUDGMENT

This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 16 February 2016.

STRASBOURG

25 November 2014

FINAL

25/02/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Borovská and Forrai v. Slovakia,

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

Josep Casadevall, President,
Luis López Guerra,
Ján Šikuta,
Dragoljub Popović,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 4 November 2014,

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

PROCEDURE

1. The case originated in an application (no. 48554/10) 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 three Slovak nationals, Ms Mária Borovská, Ms Mária Buzová and Mr Štefan Forrai (“the applicants”), on 16 August 2010.

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

3. The applicants alleged, in particular, that their rights under Article 6 § 1 of the Convention had been violated in that their property claim had been arbitrarily dismissed. In particular, the courts had failed to respond to their argument that a number of generically similar claims concerning other plots of land on which the same functional sports complex had been built had been granted.

4. On 18 March 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. Ms Borovská and Mr Forrai (“the first and third applicants”) were born in 1948 and 1927 respectively, and live in Košice.

6. Ms Buzová (“the second applicant”) was born in 1937 and also lived in Košice.

On 17 April 2014 the Court received a letter from the applicants’ lawyer informing it that, on 27 October 2013, the second applicant had died and that the inheritance proceedings were pending.

A. The property and context

7. This application and three others (nos. 18803/10, 42812/10 and 44019/11) concern the regularisation of the relationship between ownership and use of real property located in the cadastral area of Košice-Sever.

8. Certain land in that area was expropriated in the 1980s by the (then socialist) State and a public sports centre was built on it. The sports centre comprises buildings and various other facilities, such as a tennis court, a grandstand, a water station and paved areas.

9. After the post-1989 political, constitutional and legal changes, litigation took place with a view to resolving various property claims made by the original owners (or their legal successors) against the entities that owned or operated the sports centre or various parts of it.

10. The land concerned is divided into a number of plots with various owners, many of whom are linked by family relations and history, and who had the same legal representation in the above-mentioned proceedings. Their lawsuits followed a similar pattern, but sometimes had varying results. They included the following proceedings.

B. The proceedings

11. The applicants in the present case are successors in title to a plot of land in the above-mentioned area, having inherited their title from the original owner, who died in 1959.

12. On 22 August 1994 the applicants lodged an action against the owner of a sports centre seeking to obtain a court order for the removal of the constructions on the land.

The principal line of argument was that the expropriation decision of 24 February 1984 was invalid in law. The applicants were therefore the lawful owners of the land in question, in particular plot no. 10610 (recorded on sheet no. 1460 in the “old” records), and the defendant had no lawful title to have the constructions on the applicants’ land.

13. The action was subsequently amended to state 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 to two more defendants: the municipality concerned and a private company.

14. The action was examined and determined at first instance by the Košice I District Court (Okresný súd). In its judgment (rozsudok) of 11 August 2008, the District Court acknowledged that (i) the expropriation of 1984 was legally ineffective on account of procedural flaws; (ii) as a consequence the applicants were the owners of the land in question; (iii) the constructions on it had been built without a valid legal title in so far as the land was concerned; and (iv) 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 any statute of limitation, unlike the special legislation on restitution, which contained specific time-limits (see paragraph 24 below).

15. The District Court further held that, for practical reasons, it was out of the question to regularise the situation by establishing that the applicants were 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 the physical removal of the constructions in question.

16. However, contrary to the applicants’ assertions, the District 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” (stavba) in legal terms. An easement over land could only be established for the benefit of the owner of a building in the given sense. In that connection, the court relied on Article 135c § 3 of the Civil Code (Law no. 40/1964 Coll., as amended) (see paragraph 21 below).

The court also noted that it was bound by the legal classification of the applicants’ claim and concluded that, since the constructions on their specific plots of land were not buildings, the claim had to be dismissed.

17. The applicants challenged the first-instance judgment by means of an appeal (odvolanie) to the Košice Regional Court (Krajský súd).

They argued in particular that the District Court had failed to appreciate that the property in question was part of a large complex serving a single purpose, that a number of claims had been raised in respect of that property, that those claims had been fully or partly successful, that the legal nature of the claims was identical to those raised by the applicants; and that the only difference was the technical parameters of the specific plots at stake.

The applicants pointed out specifically that, in its judgment in case no. 15C 251/94, the District Court had established an easement in respect of plots of land comprising the sports centre on which similar constructions had been built, exactly as claimed by the applicants in the present case. The court had made no distinction between plots with and those without “buildings” on them (see paragraphs 25 et seq. below).

18. On 11 February 2010 the Regional Court, sitting in chambers, dismissed the applicants’ appeal and 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 considered as having appropriated the land in question without legal title within the meaning of section 6(1)(p) of the Act on adjustment of ownership rights in respect of land and other agricultural property (Law no. 229/1991 Coll., as amended – “the Land Ownership Act”). The restitution of land in such circumstances fell under the regime of the said legislation and any claims for it had had to be lodged by 31 December 1992 at the latest (see paragraphs 22 et seq. below).

The Regional Court observed that the applicants had failed to pursue that course of action and held that asserting their property rights under general civil law, as the applicants had done, was not permissible.

The applicants’ argument concerning the differing judicial practice went unanswered.

The Regional Court’s judgment became final and binding on 16 March 2010.

C. Final domestic decision

19. 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 considered the dismissal of their action arbitrary and alleged that 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 had been violated.

Among other things, they argued that – on the specific facts – their case fell outside the purview of the restitution laws cited in the Regional Court’s judgment and that the existence of the restitution laws as leges speciales did not exclude the application of the rules on protection of property rights under the Civil Code as a lex generalis.

In addition, the applicants submitted that judicial practice had varied. They referred to the District Court’s judgment in case no. 15C 251/94 and its judgments in a number of other cases concerning the same sports centre, in which the application of general civil law in an identical context had been accepted. Although they had raised this specific argument before the Regional Court, the latter had taken no position on it and its reasoning had been generally inadequate and arbitrary.

Moreover, the applicants emphasised that it had been sixteen years since the introduction of their action, a protracted period for which they bore no responsibility. They considered that, therefore, any case-law that may have meanwhile been established should not be detrimental to them.

20. On 3 June 2010 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It observed that it was not a court of further appeal against decisions of the ordinary courts. It cited extensively from the Regional Court’s judgment, finding no constitutionally relevant unfairness, arbitrariness or irregularity in it.

The applicants’ argument concerning the differing judicial practice went unanswered.

The decision was served on the applicants’ lawyer on 30 July 2010.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Civil Code

21. Article 135c deals with situations concerning so-called “unlawful constructions”, that is buildings (stavba) constructed on somebody else’s plot of land (pozemok) without an entitlement to do so.

At the request of the owner of the land, the court has the power to order the removal of such buildings at the cost of the person who constructed them (paragraph 1).

However, if the removal of the building is not practical, and subject to consent by the owner of the land, the court has the power to rule that the title to the building be transferred to the owner of the land in return for compensation (paragraph 2).

The court also has the power to regularise the relationship between the owner of the land and the owner of the building by taking other measures, in particular by establishing an easement, which is necessary for the exercise of ownership rights in respect of the building, in return for compensation (paragraph 3).

B. Land Ownership Act

22. The Act governs, inter alia, the restitution of certain agricultural and other property defined in section 1 which was assigned or transferred to the State or other legal persons between 25 February 1948 and 1 January 1990. Section 6(1) lists the acts giving rise to a restitution claim.

23. Under section 6(1)(p), ownership of real property is to be restored if it passed to the State in the given period as a consequence of appropriation without legal title.

24. The time-limits for making restitution claims under the Act are governed by its section 13, under which – in principle – if a claim was not made by 31 December 1992, it would become extinct (zánik práva).

C. Judicial practice

1. Judgments in preceding cases

25. In a case registered at the District Court under file no. 15C 251/94 other claimants raised essentially the same claims as the applicants in respect of other plots of land under the same sports centre, the defendant being the respective municipality.

26. Before the case was resolved on the merits with final effect, the Supreme Court had determined the claimants’ appeal on points of law (dovolanie) (no. 3 Cdo 96/98) against a previous judgment of the Regional Court. In its judgment of 25 February 1999, the Supreme Court observed that before the action could be determined on the merits (of the claim for an easement), preliminary questions had to be answered as to whether the claimants were the owners of the land concerned and, if they were, whether they had standing to sue in the case.

The Supreme Court further observed that, when dealing with those questions, the Regional Court had noted that the land in question had been expropriated in 1984. The Regional Court had therefore held that, even assuming that the expropriation had been flawed, it could only have been challenged by means of administrative-law remedies and within the statutory time‑limits. That, however, had been beyond the scope of the case at hand and, therefore, the Regional Court had held that the 1984 expropriation should be considered as being a matter of fact.

27. The Supreme Court disagreed with the Regional Court’s position described above. As was found in the present case (see paragraph 14 above), it found that the expropriation of 1984 was legally ineffective. As a consequence, the courts were bound to examine the preliminary question of the claimants’ ownership, independently and irrespective of the expropriation decision.

28. The case was finally decided on the merits by the District Court on 13 March 2002. The action was granted and an easement was established for the benefit of the claimants in respect of the entire property covered by their claim, that is to say including some plots on which no “buildings”, in the sense explained above, were situated.

The judgment was not appealed against and became final and binding on 3 May 2002.

29. The ensuing question concerning the financial compensation payable by the municipality to the claimants for the easement was resolved by the District Court in a judgment of 13 December 2006 (case no. 15C 717/02) on the basis of an expert assessment.

30. In two further cases concerning the same property it was decided that the claimants were entitled to assert their property claims under the general provisions of the Civil Code.

The determinative factor for those cases was whether or not the land in question was under “buildings”. This was partly so in the former case and not in the latter.

Accordingly, the claim in the former case was partly granted and partly dismissed, while in the latter case it was dismissed in its entirety. The respective judgments were given on 11 August and 24 November 2008 (the District Court) and 2 February and 20 April 2009 (the Regional Court), and the final decisions were given by the Constitutional Court on 8 September 2009 and 18 March 2010.

2. Supreme Court’s judgment of 25 February 2009 (case no. 4Cdo 130/07) in an unrelated case and a subsequent case concerning the same sports centre

31. In an unrelated case leading to a Supreme Court judgment, the claimants sought a ruling declaring that a piece of real property fell within the estate of their ancestor. Just as in the present case, the property in question had “passed to the State as a consequence of appropriation without legal title” within the meaning of section 6(1)(p) of the Land Ownership Act.

In the context of those proceedings an appeal on points of law was lodged with the Supreme Court, which was called on to resolve specifically the question whether, in the circumstances, the claimants had standing to seek the protection of their rights under the general provisions on property law under the Civil Code.

32. The Supreme Court resolved the question in the negative. It observed first of all that the claimants’ case fell within the purview of the above-cited provision of the Land Ownership Act and held that that piece of legislation constituted a lex specialis in relation to the respective provisions of the Civil Code. The application of the Land Ownership Act precluded the subsidiary application of the Civil Code provisions, which would otherwise lead to circumventing the provisions of the Land Ownership Act.

33. The Supreme Court also observed that the special legislation on restitution of property was based on the presumption that the property to be restored had passed to the State, including those instances where it had been appropriated by the State without any legal title, and that the claimants would only become the owners if the property was restored to them.

The conditions for having the property restored were set by the Land Ownership Act with the attendant consequence of excluding the application of the general provisions of the Civil Code.

In the restitution laws, the lawmaker acknowledged that there had been frequent instances of occupation of property by the State without valid legal title. However, although those laws were not intended to provide the State with title of its own but rather to vindicate the claimants by providing them with the means of restoring their title, if the claimants failed to do so within the given time-limit, their claims would become extinct and the position of the State vis-à-vis the property would become regularised.

34. The same position was taken in a subsequent case concerning substantially the same claims as in the present case in relation to the same sports centre. The respective judgments were given on 2 April 2009 (the District Court) and 10 May 2010 (the Regional Court), and the final decision was given by the Constitutional Court on 12 May 2011.

3. Constitutional Court’s judgment of 28 March 2012 (case no. III. ÚS 16/2012)

35. The proceedings ultimately leading to the Constitutional Court’s judgment (nález) concerned claims that were essentially the same as those of the applicants, except that they had been made by a different group of claimants and concerned different plots of land under the same sports centre.

36. In that set of proceedings the claimants challenged before the Constitutional Court a Supreme Court judgment dated 13 September 2011 concerning an appeal on points of law (no. 4 Cdo 180/2010). In that appeal, the Supreme Court had been called on to resolve specifically the same question as mentioned above. It did so in the negative, along the same lines as in its judgment of 25 February 2009 in case no. 4Cdo 130/07 (see paragraphs 31 et seq. above), referring to that judgment and several others.

37. However, the Constitutional Court arrived at a contradictory conclusion, finding that the Supreme Court had violated the claimants’ rights to protection of property and to a fair trial. It quashed the judgment of 13 September 2011 and remitted the claimants’ appeal on points of law to the Supreme Court for a new determination.

38. The Constitutional Court noted that the restitution laws had not been enacted to terminate the ownership rights of those entitled to restitution, but rather to facilitate their reactivation. Therefore, if property had passed to the State in the given period as a consequence of appropriation without legal title, the original owners had not lost their title and nothing prevented them or their legal successors from asserting it under the general provisions of the Civil Code. It had by no means been the intention of the lawmaker, when enacting the restitution laws, to provide for new entitlement on the part of the State to unlawfully seized property or to legalise in any way the unlawful actions of the State committed in “the period of suppression”.

39. In that connection, the Constitutional Court cited an established line of its case-law, dating back to 2004, 2006, 2009 and 2011, and found no reasons for departing from it.

40. In addition, the Constitutional Court found it of relevance that in various proceedings in respect of claims that were generically similar, concerning real property constituting the same sports centre, the ordinary courts – including the Supreme Court – had been arriving at contradictory conclusions. This amounted to divergent decision-making contrary to the principles of foreseeability of the law and legal certainty, and was manifestly unfair.

41. Lastly, the Constitutional Court held that, although the ordinary courts were bound to accept its legal views over the case, this did not necessarily mean that the outcome of the proceedings had to be entirely in the claimants’ favour or that the ordinary courts had to reach different overall conclusions.

III. RELEVANT EUROPEAN TEXTS

A. Report on the Rule of Law by the Venice Commission, 25‑26 March 2011

42. The relevant parts of the report state that, in order for the principle of legal certainty – essential for maintaining confidence in the judicial system and the rule of law – to be achieved, the State must make the law easily accessible and must also apply the laws it has enacted in a foreseeable and consistent manner. As the existence of conflicting decisions within the highest courts may be contrary to this principle, it is necessary for those courts to establish mechanisms to avoid conflicts and ensure the coherence of their case-law.

B. Opinion no. 11 (2008) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on the quality of judicial decisions

43. The relevant parts of the Opinion read as follows:

“47. While recognising the judges’ power to interpret the law, the obligation of the judges to promote legal certainty has also to be remembered. Indeed legal certainty guarantees the predictability of the content and application of the legal rules, thus contributing in ensuring a high quality judicial system.

48. Judges will apply the interpretative principles applicable in both national and international law with this aim in mind. ... In civil law countries, they will be guided by case law, especially that of the highest courts, whose task includes ensuring the uniformity of case law.

49. Judges should in general apply the law consistently. However when a court decides to depart from previous case law, this should be clearly mentioned in its decision.”

THE LAW

I. PRELIMINARY ISSUES

44. The Court notes that the second applicant died in the course of the Convention proceedings, on 27 October 2013. The Court was advised of her death by the applicants’ lawyer on 17 April 2014 (see paragraph 6 above).

45. The Court notes that, in the above-cited communication from the applicants’ lawyer, it was also advised that the inheritance proceedings following the passing of the second applicant were still pending. However, no further detail has been imparted, in particular no element suggesting that there were any heirs or next of kin wishing to pursue the application in her stead.

46. In the light of the foregoing, the Court concludes that, in so far as it has been submitted by the second applicant, it is no longer justified to continue examination of the application within the meaning of Article 37 § 1 (c) of the Convention.

47. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the relevant part of the case.

48. In view of the above, it is appropriate to strike the case, in so far as brought by the second applicant, out of the list.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

49. The first and third applicants complained that the proceedings in respect of their property claim had been unfair in that the domestic courts had wrongfully dismissed their claim and had failed to give any response to the argument that, in other similar cases, they had reached a different conclusion. In that respect, they relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

50. The Court considers that the complaint most naturally falls to be examined under Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

51. The Court notes that this complaint 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

52. The applicants contended that the proceedings had been unfair in that the domestic courts had wrongfully dismissed their claim and had failed to give any response to the argument that, in other similar cases, they had reached a different conclusion.

53. In reply, the Government submitted that the situation in case no. 15C 251/94, as referred to by the applicants (see paragraphs 25 et seq. above), had been factually complex and generally obscure. At no stage of the proceedings in that case had the question of the applicability of the general provisions on property law been actually examined. The jurisprudential value of the judgments in that case was therefore insignificant.

As far as the judgment of the District Court was concerned (see paragraphs 14 et seq. above), it was in line with the first‑instance judgments of 7 and 11 August 2008 in cases nos. 18803/10 and 42812/10 (see paragraph 30 above).

The Regional Court’s judgment (see paragraph 18 above) had, however, been given some ten months later than the appellate judgments in those two cases. It had been made subsequent to the Supreme Court’s judgment of 25 February 2009 (see paragraph 26 above) and as such it was in line with it. Consequently, the appellate judgment in the present case reached a different conclusion from that reached by the Regional Court in those other two cases.

In the Government’s submission, the Supreme Court’s judgment of 25 February 2009 was the result of a gradual evolution of the decision‑making practice on the matter, and it had naturally been reflected in the outcome of the proceedings in the present case.

In addition, the Government emphasised that both the District Court and the Regional Court had meticulously reasoned their decisions.

Lastly, the Government considered that the decision-making in the applicants’ case at the domestic level had not been vitiated by any “profound and long-standing differences” in terms of the Court’s case-law so as to violate the principle of legal certainty.

54. In a rejoinder, the applicants disagreed and reiterated their complaints.

In addition, they emphasised that all the various sets of proceedings concerning the land on which the sports centre had been built involved residents from the same village and neighbours, most of whom were related. They were legally and factually in exactly the same situation, had intensely shared information as to the development of their respective lawsuits, had had the same legal representation, and their claims and subsequent argumentation had been identical. Moreover, their claims had been subject to the same legal provisions and they had all asserted their rights before the same courts at more or less the same time.

As to case no. 15C 251/94, the applicants submitted that it had been meant to serve as a pilot case to be followed in the other parallel proceedings concerning the same matters. It was all the more striking that the courts had failed to follow the example of that case and had arrived at varying conclusions. The applicants considered the domestic courts’ decision-making disorderly and submitted that this had been accentuated by the excessive length of the proceedings.

In so far as the Government had relied on the Supreme Court’s judgment of 25 February 2009, it was true that subsequently there had been a certain unification of the Regional Court’s approach. However, the wrongfulness of that approach had been clearly confirmed by the Constitutional Court’s judgment of 28 March 2012 (see paragraphs 35 et seq. above).

55. Responding further, the Government submitted that a constant evolution of decision-making practice was natural. They pointed out that the Constitutional Court’s judgment of 28 March 2012 had been made subsequent to the judgments in the present case.

2. The Court’s assessment

(a) General principles

56. The Court observes that the present case raises issues of adequate reasoning and conflicting court decisions.

57. As to the former point, the Court reiterates that Article 6 § 1 of the Convention obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which the duty to give reasons applies may vary according to the nature of the decision. It is necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303‑A).

58. On the issue of conflicting court decisions, the Court observes that the relevant Convention principles have been summarised in its judgment in the case of Albu and Others v. Romania (nos. 34796/09 and sixty-three other cases, § 34, 10 May 2012, with further references) as follows:

(i) It is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Likewise, it is not its function, save in the event of evident arbitrariness, to compare different decisions of national courts, even if given in apparently similar proceedings, as the independence of those courts must be respected;

(ii) The possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction;

(iii) The criteria that guide the Court’s assessment of the conditions in which conflicting decisions of different domestic courts ruling at last instance are in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention consist in establishing whether “profound and long‑standing differences” exist in the case-law of the domestic courts, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect;

(iv) The Court’s assessment has also always been based on the principle of legal certainty, which is implicit in all the Articles of the Convention and constitutes one of the fundamental aspects of the rule of law;

(v) The principle of legal certainty guarantees, inter alia, a degree of stability in legal situations and contributes to public confidence in the courts. The persistence of conflicting court decisions, on the other hand, can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law;

(vi) However, the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law. Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement.

(b) Application of these principles in the present case

59. The Court observes that the problem obtaining in the present case is set against the background of regularisation of the relationship between ownership and use of real property constituting, or related to, the sports centre, and that the sports centre would appear to function as a single complex. This regularisation process has involved a relatively limited number of actors, who were all legally and factually in practically the same position. The claimants had a common history and their claims were made through the same legal representation, at around the same time, before the same courts and on the basis of the same arguments.

60. In such circumstances it would appear natural that the claims have analogous outcomes. However, that has not been the case, as the claims have had at least three different types of outcome.

Firstly, in case no. 15C 251/94, an easement was established over the entirety of the real property concerned, irrespective of whether or not there was a “building” situated on the impugned plot of land (see paragraphs 25 et seq. above).

Secondly, in two cases an easement was established only over the land on which a “building” was situated (see paragraph 30 above).

Thirdly, in the present and another case (see paragraph 34 above), no easement was established at all on the grounds that the claimants had no standing to sue over that matter under the general provisions of the Civil Code.

61. In so far as the present case is concerned, the Court observes that the position ultimately taken by the domestic courts directly contradicted that taken in the first and second categories, in which the courts found no obstacle to establishing an easement under the general provisions of the Civil Code.

62. The Court observes that those contradictory conclusions were reached by the domestic courts at or around the same time.

63. The Court also notes that although both the District Court and the Regional Court ruled against the applicants, they did so for different reasons. While the District Court took the “second position”, that is to say that the action could not be granted as it did not relate to land under a “building”, its reasoning was overruled by the Regional Court on the basis of the “third position”, namely that the applicants had no standing to sue under the general civil law. In doing so, the Regional Court held no hearing and, in so far as the applicants objected that its judgment was inconsistent with the outcomes of the cases in the first and second groups, their argument was completely ignored by the Constitutional Court.

64. To the extent that the Government seek retrospectively to explain the change in the Regional Court’s position on the case – coupled by the judgment of the Supreme Court of 25 February 2009 – by the gradual evolution of the relevant case-law, the Court finds it of relevance that no such jurisprudential developments appear to have been cited or explained by the domestic courts in their decisions in the present case.

65. The Court notes that some stabilisation of the decision-making practice in line with the third interpretation seems to have occurred by virtue of the Supreme Court’s judgment of 25 February 2009. However, this again appears directly to contradict the Constitutional Court’s judgment of 28 March 2012, in which it upheld the position it had been adopting on the matter since 2004.

66. In these circumstances, the Court is of the opinion that the divergence of the domestic courts’ case-law on the matter was “profound and long-standing”. It thus remains to be established whether the domestic law provides for machinery for overcoming those inconsistencies, whether that machinery has been applied and to what effect.

67. From that perspective, the Court observes that the Constitutional Court’s judgment of 28 March 2012 was given after the judgments in the present case and that it reveals a continuing and fundamental divide in approaches to an essential legal question within the highest levels of the respondent State’s judiciary. This appears all the more striking since the divide concerns a rather fundamental piece of legislation on transformation of the respondent State’s legal and constitutional systems, which has been in force for about two decades.

68. The Court thus concludes that, even assuming that the domestic law provides for machinery for overcoming the impugned inconsistencies and that that machinery has been applied, it cannot be said to have had any consolidating effect.

69. The Court further considers that the gravity of the situation in the present case is heightened by the fact that (i) the decision-making process in respect of the applicants’ action lasted more than fifteen years; (ii) although the relevance of the impugned divergence of case-law is not confined to the litigation in respect of the sports centre in Košice-Sever, in practical terms it has affected a relatively limited number of claimants, which makes the divergence all the more pronounced; (iii) all of those claimants have been faced with a single factual and legal problem, which arose as a result of the actions of the previous regime; and (iv) the administration of justice in such a way by definition jeopardises public confidence in the judicial system.

70. The foregoing considerations are sufficient to enable the Court to conclude that the lack of certainty to which the applicants have been exposed with regard to the case-law pertaining to their standing to sue has had the consequence of depriving them of one of the fundamental guarantees of a fair trial within the meaning of Article 6 § 1 of the Convention.

There has accordingly been a violation of Article 6 § 1 of the Convention.

71. In view of that finding the Court considers that it is not called upon to examine separately the merits of the applicants’ claim that the domestic courts’ reasoning was inadequate.

III. OTHER ALLEGED VIOLATIONS

72. Lastly, the first and third applicants complained under Article 6 § 1 of the Convention that the length of the proceedings had been excessive. They also complained under Article 1 of Protocol No. 12 that they had 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 had been created providing for the establishment of an easement (for example, owners of land on which highways had been built).

73. However, in the light of all the material in its possession, and in so far as these complaints are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that these complaints must be rejected in accordance with Article 35 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

74. 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

75. The applicants claimed 22,789.49 euros (EUR) in respect of pecuniary damage, this amount having been established by an expert as the financial value of the easement sought in the domestic proceedings. They also claimed EUR 50,000 in respect of non-pecuniary damage, referring among other things to the length of the proceedings.

76. As regards the former claim, the Government stated that if the applicants had incurred any pecuniary damage, a potential finding by the Court of a violation of their Convention rights would provide a basis for reopening the domestic proceedings under Article 228 § 1 (d) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended), and that the applicants could seek compensation in such reopened proceedings. As regards the latter claim, the Government considered it excessive.

77. As to the claim in respect of pecuniary damage, the Court observes that it is essentially aimed at obtaining what the applicants consider to be the financial equivalent of what they sought in the original proceedings and that the provision invoked by the Government appears to provide the applicants with a way of having those proceedings reopened.

78. The Court considers that the first and third applicants must have suffered non-pecuniary damage. Making its assessment on an equitable basis, the Court awards them EUR 5,200 each, plus any tax that may be chargeable, in respect of non-pecuniary damage.

B. Costs and expenses

79. The applicants also claimed EUR 392.34 for the costs and expenses incurred before the domestic courts and EUR 1,697.91 for those incurred before the Court.

As to the former claim, they submitted a copy of a legal assistance contract with their domestic counsel, under which they had been requested to make a down payment of the equivalent of EUR 276.17 for the lawyers’ fees and copies of documents showing that they had paid the equivalent of EUR 116.17 in court fees.

As regards the latter claim, they submitted a copy of a legal assistance contract with their counsel before the Court, pursuant to which they had committed to pay the lawyer 13% of their award of damages by the Court. The precise calculation of the amount of their claim was made under the formula applicable at the national level.

80. The Government referred to the Court’s case-law and contested both claims, the former claim as to its substance, and the latter as to its amount. They specifically contested the method of calculating the fees payable for the proceedings before the Court and submitted that only such costs as had been actually and necessarily incurred and were reasonable as to quantum should be reimbursed.

81. In accordance with 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).

82. 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 sum of EUR 1,200 to the first and third applicants jointly, covering costs under all heads.

C. Default interest

83. 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. Decides to strike the application, in so far as brought by the second applicant, out of its list of cases;

2. Declares the complaint by the first and third applicants concerning the alleged violation of their right to a fair hearing under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. 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 5,200 (five thousand two hundred euros), plus any tax that may be chargeable, to the first and third applicants each, in respect of non-pecuniary damage;

(ii) EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable to the applicants, to the first and third 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;

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

Done in English, and notified in writing on 25 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsJosep Casadevall
RegistrarPresident

 

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