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FOURTH
SECTION
CASE OF URBÁRSKA
OBEC TRENČIANSKE BISKUPICE
v.
SLOVAKIA
(Application
no. 74258/01)
JUDGMENT
(Just
satisfaction)
FINAL
24/04/2009
STRASBOURG
27
January 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Urbárska obec
Trenčianske Biskupice v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä, judges,
and
Fatoş Aracı,
Deputy
Section Registrar,
Having
deliberated in private on 6 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 74258/01) 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 Urbárska obec –
pozemkové spoločenstvo Trenčianske
Biskupice (“the applicant”) on 7 September
2001.
- In
a judgment delivered on 27 November 2007 (“the principal
judgment”), the Court held that there had been a violation of
Article 1 of Protocol No. 1 as regards both the transfer of the
applicant's property to members of the gardening association and the
compulsory letting of the applicant's land on the rental terms set
out in the applicable statutory provisions preceding that transfer
(ECHR 2007 ... (extracts)).
- Under
Article 41 of the Convention the applicant sought just satisfaction
for pecuniary and non-pecuniary damage and costs.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicant to submit, within three months, their
written observations on that issue and, in particular, to notify the
Court of any agreement they might reach.
- The
applicant and the Government each filed observations.
THE LAW
- 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
1. Pecuniary damage
a) As regards the transfer of ownership of the
applicant's land
- The
applicant association claimed 7,021,246 Slovakian korunas (SKK) in
respect of pecuniary damage resulting from the transfer of its land
to the gardeners. That amount is equivalent to 233,063 euros (EUR).
According to the applicant, it corresponds to the difference between
the actual value of the land in the allotment at the time of transfer
of its ownership to the gardeners and the administrative value of the
land which the applicant had received in compensation. The former
amounted to SKK 290 per square metre. As to the latter, the applicant
association indicated that the administrative value of 1.5374
hectares of the land concerned equalled SKK 0.5 and that of the
further 4.7437 hectares was SKK 9 per square metre. Finally, the
applicant association challenged the expert opinion of 15 December
2006 on which the Government relied (see paragraph 37 of the
principal judgment).
- The
Government objected arguing that the Court's award should be based on
the difference between the market value of the applicant's land and
that which it had received in compensation. They relied on the above
expert opinion according to which the market value of the latter land
was SKK 95.25 per square metre. The applicant association had
actually received 1.4097 hectares of land. Its above indication as to
the relevant surface area was erroneous as it concerned the whole
plot from which the land transferred to it had been detached.
- In
the principal judgment the Court found that there had been a
violation of Article 1 of Protocol No. 1 on account of the transfer
of ownership of the applicant association's land. In particular, the
declared public interest in pursuing the relevant proceedings was not
sufficiently broad and compelling to justify the substantial
difference between the real value of the applicant's land and that of
the land which it obtained in compensation. The effects produced by
application of Law no. 64/1997 to the present case thus failed
to strike a fair balance between the interests at stake (paragraphs
116-123 of the principal judgment).
- The
Court accepts the Government's argument that its award should be
principally based on the difference between the market value of the
applicant's land and that of the land which it received in
compensation.
- It
was not disputed between the parties that the market value of the
applicant's land used by the gardeners with a surface area of 2.5711
hectares had been approximately SKK 290 per square metre at the time
of the transfer of its ownership. That estimate is in line with
expert valuations available (paragraphs 37 and 38 of the principal
judgment) and corresponds to EUR 9.63. In compensation for that land
the applicant association received 1.4097 hectares of land. Two
experts determined the market value of that land at the relevant time
at SKK 110 and 95 per square metre respectively (see paragraphs 36
and 37 of the principal judgment). The Government accepted the latter
valuation (equivalent to EUR 3.15) and the Court finds no reason for
reaching a different conclusion in that respect.
- Apart
from the difference in surface area and the general value of the
property, the Court also noted that the land transferred to the
tenants has considerable development potential which the land given
to the applicant association does not possess (paragraph 125 of the
principal judgment).
- In
view of the above considerations, the Court awards the applicant
association the sum of EUR 200,000 in respect of pecuniary damage
related to the transfer of ownership of its land.
b) As regards the compulsory letting of the land
- In
the principal judgment on the merits the Court further found that the
compulsory letting of the land of the applicant association on the
basis of the rental terms set out in the applicable statutory
provisions was incompatible with the applicant's right to peaceful
enjoyment of its possessions (paragraphs 140-146).
- The
applicant submitted documents indicating that it had paid the real
property tax in respect of the land prior to its transfer to the
gardeners and argued that under the relevant law it had been liable
to pay that tax.
- The
Government disagreed on that point and maintained that in the
particular circumstances of the case the land tax had been payable by
the tenants, i.e. the gardeners.
- The
Court notes that the above arguments are a prolongation of the
parties' post-hearing submissions as to who had been liable to pay
the land tax prior to the transfer of ownership of the applicant's
land. In the principal judgment the Court admitted that the
above issue might be relevant for its decision under Article 41 of
the Convention, if appropriate (paragraph 145).
- However,
such is not the case since the applicant claimed no specific sum in
respect of pecuniary damage resulting from the compulsory lease of
its land. The Court is therefore not required to make any award.
2. Non-pecuniary damage
- The
applicant association claimed EUR 17,000 in respect of non-pecuniary
damage indicating that that sum corresponded to EUR 250 in respect of
each of its 68 members. Its representative relied on the fact that
the members of the association had suffered emotional distress as a
result of the proceedings in issue and the ultimate transfer of
ownership of the land.
- The
Government objected to that amount as being excessive.
- The
Court has accepted that compensation for non-pecuniary damage can be
awarded under Article 41 of the Convention, in justified cases, to
legal persons such as, for example, commercial companies (see
Sovtransavto Holding v. Ukraine (just satisfaction),
no. 48553/99, §§ 79-80, 2 October 2003 or Meltex
Ltd and Mesrop Movsesyan v. Armenia, no.
32283/04, § 105, 17 June 2008) or political parties
(Freedom and Democracy Party (ÖZDEP) v. Turkey
[GC], no. 23885/94, § 57, ECHR 1999 VIII).
- It
considers that the applicant association, through the intermediary of
its members, suffered non-pecuniary damage both as a result of the
compulsory lease of the land and the subsequent transfer of its
ownership in conditions which were contrary to Article 1 of Protocol
No. 1. Having regard to the particular circumstances of the case and
deciding on an equitable basis, the Court considers it appropriate to
award to the applicant association the sum of EUR 7,000 under this
head.
B. Costs and expenses
- The
applicant claimed EUR 12,667 in respect of costs and expenses
incurred in the context of the proceedings before the Court. That sum
comprised the lawyers' fees (EUR 7,542), travelling, accommodation
and subsistence costs relating to participation in the hearing in
Strasbourg (EUR 3,797), the costs of opinions on the value of the
property, their translation and the photographing of the allotment (a
total of EUR 928), as well as various expenses related to
communication with the Court (a total of EUR 400).
- The
Government objected to the lawyers' fees as being excessive. They
further objected to the claim in respect of the opinions submitted by
a private company at the applicant's request and the related expenses
arguing that that company had no official authorisation to value real
property. They considered irrelevant the applicant's argument that
the individual experts who had prepared the opinions as employees of
that company had the same qualification as the expert who at the
Government's request had valued the property on 15 December 2006.
- 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 Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
26. In
the present case, regard being had to the information in its
possession, the complexity of the case including the fact that an
oral hearing was held on the merits and the above criteria, the Court
considers it reasonable to award the applicant association the sum of
EUR 12,000 for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Holds
(a) that
the respondent State is to pay the applicant, 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
200,000 (two hundred thousand euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii)
EUR 7,000 (seven thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage,
(iii) EUR
12,000 (twelve thousand euros), plus any tax that may be chargeable
to the applicant, in respect of costs and expenses;
(c) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas
Bratza
Deputy Registrar President
