FIRST SECTION
DECISION
Application no. 43225/19
Andrej SALAY and Lucia ZEMANOVÁ
against Slovakia
The European Court of Human Rights (First Section), sitting on 28 September 2021 as a Committee composed of:
Péter Paczolay, President,
Alena Poláčková,
Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the above application lodged on 30 July 2019,
the decision to give notice to the Government of the Slovak Republic (“the Government”) of the complaint under Article 8 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Mr Andrej Salay, was born in 1978 and died on 21 March 2020. The second applicant, Ms Lucia Zemanová, was born in 1980. The first applicant was, and the second applicant is, a Slovak national, residing in Plavecký Štvrtok. They were represented before the Court by the European Roma Rights Centre and Mr M. Zálešák, a lawyer practising in Bratislava.
2. By a letter of 9 November 2020, the first applicant’s son, Mr Adrián Salay, who was born in 1998 and is a Slovak national living in Plavecký Štvrtok, informed the Court that he wished to pursue the application in the late first applicant’s stead.
3. The Government of the Slovak Republic (“the Government”) were represented by their co-Agent, Ms M. Bálintová.
The circumstances of the case4. The facts of the case, as submitted by the parties, may be summarised as follows.
Background5. The applicants lived together as partners. In the 1990s they built, by themselves, a dwelling in the municipality of Plavecký Štvrtok. The location is home to a Roma community of several hundreds.
6. It is undisputed that the applicants had no title to the land underneath the dwelling, which belongs to the State and is managed by the Slovak Real Estate Fund (Slovenský pozemkový fond – “SRE Fund”). It is likewise uncontested that the dwelling was built with no building permit (stavebné povolenie) and put in use without a construction approval (kolaudačné rozhodnutie).
7. The dwelling is situated in the vicinity of a high-pressure gas pipeline and next to a natural reserve. However, it has been in dispute whether the dwelling is in fact within the pipeline’s safety zone, as recorded in the pertaining maps.
8. The applicants occupied the dwelling with their three then minor children, including Mr Adrián Salay (see paragraph 2 above).
Regularisation proceedings9. On 24 February 2012 the applicants were informed that State‑supervised construction inspection (štátny stavebný dohľad) had commenced as there was a suspicion that their dwelling had been erected in violation of the applicable construction rules.
10. On 1 March 2012 the inspection held an oral hearing and visited the site, in the presence of the first applicant (the second applicant did not attend). It was concluded that the dwelling had been knowingly built in breach of the applicable construction rules and without a legal title. Accordingly, the applicants were invited to seek its regularisation and the construction authority in charge was asked to carry out the respective proceedings.
11. On 4 July 2012 the Plavecký Štvrok municipal construction authority opened administrative proceedings for supplementary construction approval (konanie o dodatočnom povolení stavby) in relation to the applicants’ dwelling. The applicants were asked to lodge a request for regularisation of the construction, and to support it with documentation specified in the notice. The time-limit for doing so was set for sixty days and the applicants were informed that they were free to ask for its extension if they were unable to respect it. The notice relies on section 88a of the Construction Act (Law no. 50/1976 Coll. as amended). Subsection 3 of that provision addresses the situation when the owner of the construction lacks title to the land on which the construction is situated, in which circumstances the construction authority is to suspend the regularisation proceedings and to refer the parties to an ordinary court for settlement of their legal relationship. Should there be no request for regularisation lodged or should the proceedings end with a conclusion that a supplementary construction approval was contrary to public interest, an order would be issued for the removal of the construction (section 88a (2) of the Construction Act).
Order for removal of the applicants’ dwelling12. On 5 October 2012 the municipal construction authority ordered that the dwelling be removed within three months. The order would however become enforceable only once final. In that respect, the decision contained specific instructions as to an available administrative appeal and judicial review.
13. The construction authority recapitulated the procedural history and the enquiry’s findings of fact. It noted that the applicants had not responded at all to the invitation to seek regularisation of the dwelling. It further found that the dwelling was contrary to the public interest and had to be removed.
Challenges to the order for removal(a) The applicants’ argumentation
14. Represented by a lawyer, the applicants challenged the order of 5 October 2012 by way of an administrative appeal, an administrative-law action and an appeal to a higher judicial instance. They did so in their own names, as well as in the name of their children. Their arguments may be summarised as follows.
15. The applicants initially raised a number of technical and procedural objections such as, for example, that there were errors in the cadastral map and in the applicable zoning plan, that the ownership of the dwelling had not been unequivocally established and that the owner of the pipeline had not been invited to take part in the proceedings.
16. Moreover, as there were other constructions in the same location which were not subject to regularisation proceedings, the taking of such proceedings against the applicants had been discriminatory on racial grounds.
17. In addition, the regularisation proceedings were prohibitively complex, and – as the applicants initially argued – the construction authority had failed to provide them with assistance to be able to cope with them. At a later stage of the proceedings they conceded that the authorities had instructed them on how to proceed in the regularisation proceedings, but nevertheless continued arguing that it had not been in the authorities’ best interest to have the applicants truly understand the consequences of the lapse of the set time-limit.
18. The applicants furthermore pointed out the generally complicated socioeconomic situation of Roma in Slovakia, which included the area of housing. They relied on the recommendations of the United Nations Committee on the Elimination of Racial Discrimination (UN CERD) in its Concluding observations on the ninth to the tenth periodic reports of Slovakia of 28 February 2013 (CERD/C/SVK/CO/9-10), to put an end to forced evictions and demolitions of Roma settlements without prior notice, to provide adequate and appropriate alternative housing solutions when such demolitions were necessary, and to report on any measures taken to address the situation of Roma in Plavecký Štvrtok.
19. Lastly, invoking their right to respect for home, the applicants argued that they had no alternative housing, that the Plavecký Štvrtok municipality had no intention of providing them with any assistance, and that they were consequently faced with losing their home and becoming homeless.
(b) The authorities’ response
20. The legal effects of the order of 5 October 2012 were suspended pending the outcome of the proceedings, first by operation of law and then by force of a decision of the Bratislava Regional Court of 15 August 2013. Nevertheless, the applicants’ arguments as such were dismissed at all levels, ultimately by the Supreme Court in a judgment of 31 May 2017. The grounds may be summarised as follows.
21. In the event of an unauthorised construction, as in the applicants’ case, the construction authorities were duty-bound to take action. This however did not automatically mean the removal of the construction, but rather a duty on the part of the authority to carry out regularisation proceedings. In particular, the authority had to invite those concerned to initiate such proceedings, to explain to them how to proceed and to assist them in doing so. Nevertheless, a procedural initiative of those who had erected the construction unlawfully was an essential prerequisite to the regularisation proceedings and, in line with the Supreme Court’s case-law (a decision of 9 July 2012 in an unrelated case (no. 5 Sžp 28/2011)), it was up to them to show that the construction was approvable. In the absence of such an initiative, the construction authority was bound to order removal.
22. In so far as there had been any error of procedure at the administrative stage of the proceedings, having to do with how the second applicant had been summoned for the proceedings, it was established that she had been appraised of her rights and had amply asserted them. She had accordingly suffered no detriment to her rights and interests.
23. It was undisputed that the applicants were the owners of the construction in question. Ownership implied commitment and attracted protection only in so far as the law was respected. An official response to an individual case created a precedent and, from that perspective, had to be such as not to encourage disrespect for the law. The Convention rights invoked by the applicants (Article 8) were not absolute and had to be weighed against the public interest. Even though the applicants had acted unlawfully, they had been afforded an extraordinary possibility of rectifying the situation by means of the regularisation proceedings.
24. The applicants had not responded in any way to the call for the initiation of such proceedings, although it had been open to them to seek assistance from the construction authority, as well as an extension of the set time-limit. Under the principle of vigilantibus iura scripta sunt, the reason why a removal of their construction had to be ordered was precisely this failure, in view of which no further examination and grounds were required.
25. As per the alleged discrimination, the authorities were liable to treat similar situations in a similar fashion and there was no indication that they had not been objective in their assessment. In particular, the applicants had failed to establish that any person had been treated differently from them, while being in a comparable situation, that is in a situation of having failed to motion for the regularisation proceedings.
The proceedings before the Constitutional Court26. The applicants lodged a constitutional complaint, invoking, inter alia, Article 6 § 1 and Article 8 of the Convention. In substance, they reiterated their argumentation (see paragraphs 14-19 above) and added that the authorities had failed to support their decisions by an adequate reasoning.
27. On 15 November 2018 the Constitutional Court rejected the complaint, essentially as manifestly ill-founded. It concurred with the lower courts’ finding that the order for removal of the applicants’ construction was based exclusively on their procedural passivity. Not even the applicants had disputed that. In those circumstances, the scope of the proceedings did not allow for substantive assessment of the removal as aimed for by the applicants. Such assessment, including under the criterion of proportionality, would have been possible in the regularisation proceedings, which however the applicants had failed to seek. The impugned judgments were adequately reasoned and showed no arbitrariness. The Constitutional Court’s decision was served on the applicants on 31 January 2019 and was not amenable to appeal.
Current status of the order of 5 October 201228. The order for the removal of the applicants’ dwelling is final, binding and enforceable. Although the applicants have not complied with it, no attempts have been made by the authorities to enforce it.
Relevant domestic law29. Pursuant to Article 71 §§ 1 and 3 of the Administrative Code (Law no. 71/1967 Coll. as amended), should a party to the proceedings fail voluntarily to discharge a duty imposed by a final and enforceable decision in a set time-limit, the enforcement of such a decision may be ordered, but no later than three years after the lapse of that time-limit.
COMPLAINT
30. The applicants complained that the order to remove their home amounted to a violation of their rights under Article 8 of the Convention. In addition, if enforced, its removal would itself constitute a further violation of that provision.
THE LAW
Standing of Mr Adrián Salay31. The Court notes that the first applicant, Mr Andrej Salay, died on 21 March 2020, after lodging the present application, and that his son, Mr Adrián Salay, has expressed his wish to continue the proceedings before the Court in his stead (see paragraphs 1 and 2 above). The Government have not raised any objection.
32. The Court notes that, in addition to being son of the first applicant, Mr Adrián Salay has been personally affected by the situation complained of and has been a party to the national proceedings for its review (see paragraphs 8 and 14 above). In the circumstances, and in view of its case law on the matter (see, for example, Ksenz and Others v. Russia, nos. 45044/06 and 5 others, § 86, 12 December 2017, with further references), it accepts that Mr Adrián Salay has a legitimate interest providing him with standing to pursue the application in his late father’s stead. However, for reasons of convenience, the text of this decision will continue to refer to Mr Adrián Salay as “the first applicant”.
Alleged violation of Article 8 of the Convention33. The applicants alleged a violation of Article 8, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
34. The Government did not question that the applicant’s dwelling constituted their home. Nevertheless, it had been built in conscious disrespect for the construction rules and property rights of the owner of the land in question. Despite the given opportunity to rectify the situation and having been informed of the consequences of a failure to do so, the applicants had remained totally passive, leaving the authorities no choice but to order removal of the construction as required by law.
The Government submitted that the applicants’ complete disrespect for the construction laws could not be tolerated merely because of their personal circumstances. Any chance to have the situation regularised, including in view of their specific circumstances, had been thwarted by their inaction. Accordingly, the applicants had failed to exhaust all available remedies.
Irrespectively of that, the Government argued that the order for removal had been lawful, had pursued a legitimate aim, and had been necessary for its attainment. In assessing it under the said criteria, regard had to be had to the scope of the proceedings which – due to the applicants’ inactivity ‑ could not have and had not involved complex assessment of their individual circumstances. The proceedings had thus focused on technicalities and procedural issues such as whether the ownership of the dwelling had been established and whether it had been necessary to have the entity operating the pipeline participate in the proceedings. The applicants’ objections in that respect had been duly examined at several administrative and judicial levels and dismissed as purposive and unfounded.
35. The applicants contended that they had sought all the remedies as required by the domestic law and that none of the domestic authorities had ever rejected their motions for failure to seek another remedy.
They argued that the authorities, fully aware of the overall context and of the applicants’ disadvantaged situation as members of the Roma community, had failed to take any additional positive steps to facilitate the regularisation of their dwelling. Rather, the authorities had imposed an excessive burden on them by requiring that they produce documentation which they had been unable to do without any legal assistance.
The applicants argued that to their knowledge there had not been a single case in which the irregular building owners in the given location had been able to secure all the documents, and in which the constructions had not had to be removed. Among such documents, a proof of title to the land played a particular role.
The applicants referred to the general situation of the Roma communities in Slovakia and stressed that they had been residing in their dwelling for fifteen years, an argument which the domestic authorities had never addressed. They claimed that the regularisation proceedings did not offer them an effective remedy in practice, that the domestic courts had failed to address the proportionality of the order for the removal, that they had not been offered any alternative housing, and that there were no plans for providing them with any.
36. The Court notes at the outset that the applicability of Article 8 of the Convention has not been disputed and finds no reasons to question it. It considers that the applicants’ complaint most naturally falls to be examined with reference to their right to respect for home, having discerned no doubt that, on the facts, the construction in question did in fact constitute the applicants’ home for the purposes of that provision.
37. The applicants’ principal contention may accordingly be seen as being one of an interference with their right to respect for home, by means of ordering the removal of their dwelling and by the potential enforcement of that order.
38. The Court considers that the applicants’ specific complaints must be examined with due regard to their context, consisting of their housing situation as such. In particular, for a number of years, the applicants have been living in a dwelling built in violation of the construction rules and in breach of the property rights of the owner of the land underneath it. There has not been any suggestion that this housing situation has ceased to be at variance with the domestic law.
39. In order to address this situation, the applicants could have asserted their substantive arguments in administrative proceedings for regularisation of the construction and, in the absence of a bilateral agreement with the owner of the land, in judicial proceedings for settlement of the relationship with that owner (see, for example, Borovská and Forrai v. Slovakia, no. 48554/10, § 21, 25 November 2014). These two aspects are intertwined in that a regularisation of the construction presupposes a settlement of the relationship with the owner of the land. This is reflected in particular in section 88a (3) of the Construction Act, which specifically presupposed the staying of the regularisation proceedings pending the resolution of the property situation in court proceedings (see paragraph 11 above).
40. As provided for by national law and explained by the domestic authorities, in respect of both types of proceedings, their opening depended on a procedural motion being made by the applicants. As to the regularisation proceedings, placing the burden to motion for those proceedings on the owners of the unauthorised construction was explained by the fact that it was for them to contribute to the rectification of an unlawful state of affairs, for which they were responsible.
41. In the present case the applicants have made no use of the said procedural mechanism arguing that it was burdensome and impossible to comply with without legal assistance. However, the Court notes that the construction authority explained to the applicants the relevant requirements, with the applicable time-limit being flexible, and was under a duty to provide them with further assistance (see paragraphs 11 and 21 above). Moreover, as the applicants participated in the entire subsequent course of the proceedings with abundant legal advice, it appears that the need for such advice presented no practical obstacle to them.
42. In addition, the Court notes that there has been no allegation made to the effect that the said procedures were incapable of resolving the applicants’ housing situation as a matter of principle. In fact, making use of them would have provided the applicants with a set of administrative and judicial remedies, with an actual or potential suspensive effect, and ultimately a review before the Constitutional Court.
43. Within this context, the applicants’ specific complaints are about the order of 5 October 2012, which may be accepted as having constituted an interference with their Article 8 rights (see Aydarov and Others v. Bulgaria (dec.), no. 33586/15, 2 October 2018). There is no issue with its lawfulness or the legitimacy of its aim (see Ivanova and Cherkezov, no. 46577/15, § 51, 21 April 2016).
44. The essence of the applicants’ complaints rather concerns its proportionality. This matter must be assessed in the light of the possibility for the applicants to seek regularisation of their dwelling as indicated above, and the fact that they had made no use of it, which limited the scope of the proceedings so that substantive aspects of their situation could in fact not be examined in them.
45. To the extent that the applicants may be understood as claiming that the respondent State should have taken action to help them in view of their precarious situation (see paragraph 35 above), the Court notes that domestic proceedings available and discussed above would have provided a procedural framework for the assessment of their substantive arguments, including those concerning proportionality (contrast, Yordanova and Others v. Bulgaria, no. 24446/06, §§ 122‑123, 24 April 2012; Winterstein and Others v. France, no. 27013/07, § 156, 17 October 2013; and Ivanova and Cherkezov, cited above, §§ 57-61).
46. The Court also considers relevant that the applicants do not raise any issue preceding or subsequent to the order of 5 October 2012 that could not have been examined in the regularisation proceedings and that not even after the order of 5 October 2012 have they taken any steps aimed at resolving their housing situation. In view of the above, it is manifest that the applicants have had at their disposal effective domestic remedies in relation to their situation which they have failed to make use of.
47. As to the humanitarian aspect of that situation following the contested order of 5 October 2012, it is to be noted that there is no indication that the applicants requested assistance in need from the respective national social services and that they exhausted any remedies in that respect. In fact, they make no distinct complaint to that effect before the Court either.
48. In these circumstances, to the extent the application has been substantiated, there is no indication of a failure on the part of the respondent State to discharge either its negative or positive obligations under Article 8 of the Convention.
49. As to the broader context, depicted by the Concluding observations of the UN CERD, the Court notes that the present case involves no issue of eviction without a prior notice and no substantiated issue of lack of alternative accommodation (in that respect see paragraph 47 above).
50. Lastly, the Court notes that the enforceability of the order of 5 October 2012 may actually meanwhile have expired by operation of Article 71 §§ 1 and 3 of the Administrative Code (see paragraph 29 above).
51. In sum, in the light of all the material in its possession, and in so far as domestic remedies have been exhausted, the Court finds that they do not disclose any appearance of a violation of the applicants’ rights under Article 8 of the Convention. Accordingly, the application must be rejected under Article 35 §§ 1, 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 October 2021.
Liv Tigerstedt Péter Paczolay
Deputy Registrar President