Resolution CM/ResDH(2010)62[1]
Execution of the judgment of the European Court of Human Rights
Kanala against the Slovak Republic
(Application No. 57239/00, judgment of 10 July 2007, final on 30 January 2008
and of 14 October 2008, final on 6 April 2009)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the breach of the applicant’s right to the peaceful enjoyment of his possessions due to the acquisition in 1998 of his share in a property by the co-owner, exercising a pre-emptory right, at a price less than the market value (violation of Article 1 of Protocol No. 1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2010)62
Information about the measures to comply with the judgment in the case of
Kanala against the Slovak Republic
Introductory case summary
This case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions due to the acquisition in 1998 of his share in a property by the co-owner, exercising a pre-emptory right, at a price less than the market value (violation of Article 1 of Protocol No. 1).
As a result of the applicant’s inability to keep up the monthly repayments of a debt incurred to finance the acquisition and refurbishment of a property, in 1998 an enforcement official (bailiff) ordered the sale of his share in the property by public auction. On the instructions of the bailiff, the property was valued by an expert in accordance with Regulation No. 465/1991. The valuation under that Regulation did not reflect the market value of the property. Pursuant to section 1(a) of the Regulation, the value of the applicant’s share thus determined was to be the opening price for public sale of the property. The public sale was annulled after the co-owner exercised his right of pre-emption in that he deposited with the bailiff the sum which corresponded to the opening price. As a result, the co-owner acquired the applicant’s share in the property at a price which has been fixed in disregard of the actual market value.
The European Court found that the contested measure amounted to a privation of possessions. By permitting the co-owner to acquire the applicant’s share in the property at a price which was below its market value, the domestic authorities had deprived the applicant of a reasonable chance of having the property sold at its actual value and reimbursing a greater amount of his debts. The Court observed that there was no apparent public-interest justification for permitting such a transaction under domestic law in disregard of the actual property value and hence the applicant’s legitimate interests. Consequently no “fair balance” had been struck between the demands of the public interest (legal certainty) and the requirement to protect the applicant’s rights.
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary and non-pecuniary damages
Costs and expenses
Total
15 000 EUR
5 114 EUR
20 114 EUR
Paid on 27/05/2009
b) Individual measures
In its judgment concerning Article 41, the Court indicated that it could not speculate as to the price for which the property would have been sold at public auction. However, in view of the conclusion reached in the principal judgment, the Court considered the applicant to have suffered a loss of real opportunities. Having regard to the nature of the breach found and the documents before it, the Court awarded a lump sum of EUR 15 000 to the applicant in respect of all heads of damage taken together. In these circumstances, no further individual measure was considered to be necessary.
II.General measures
The sale of the applicant’s property was carried out under the Executions Order of 1995 and Regulation No. 465/1991. Pursuant to section 142(2) of the Executions Order of 1995 in force at the material time, the lowest bid at a sale of property by auction shall equal the price established by an expert opinion. A valuation under Regulation No. 465/1991, which was binding on experts, did not have regard to the market value of the property.
As from 09/11/1999, section 142(2) was amended to the effect that the lowest bid at a sale by auction of immovable property must be equal to its market value (§§ 33 and 34 of the judgment). Regulation No. 465/1991 was repealed with effect from 01/01/2004. Pursuant to section 3(2)(a) and (b) of Regulation No. 86/2002, which came into effect on 31/12/2003, the general value of property is its final value determined in an objective manner by an expert and corresponding to a price for which the property could be realised in normal circumstances. As from 1999, the price which a co-owner shall pay in exercising a pre-emptive right must equal the market value of the property.
Moreover, in its opinion of 20/10/1997 the Supreme Court held that courts should take into account the general value of property, that is the price for which it could actually be sold, when deciding on the dissolution of joint ownership and on adequate compensation in such instances. The Supreme Court further stated that the general value should also be applied where a co-owner availed him or herself of the pre-emptory right to buy the property.
The European Court noted that the Supreme Court’s reasoning was in line with its own view, and furthermore, that the relevant law had been subsequently amended to the effect that the lowest bid at a sale by auction of real property has to equal its market value.
III.Conclusions of the respondent state
The government considers that no individual measures are required in this case, apart from the payment of the just satisfaction awarded by the Court, that the general measures adopted will prevent similar violations and that the Slovak Republic has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies
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