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FOURTH
SECTION
CASE OF
JENISOVÁ v. SLOVAKIA
(Application
no. 58764/00)
JUDGMENT
STRASBOURG
3 November
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 Jenisová 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,
Ján
Šikuta,
Mihai
Poalelungi,
Nebojša
Vučinić,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 13 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 58764/00) 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 a Slovakian national, Ms
Jarmila Jenisová (“the applicant”), on 22
February 2000.
- The
applicant, who had been granted legal aid, was represented by Ms V.
Danková, a lawyer practising in
Bratislava, between 6 September 2005 and 12 December 2005. The
Government of the Slovak Republic (“the Government”)
were represented by their Agent, Mrs M. Pirošíková.
- The
applicant alleged, in particular, that her right to peaceful
enjoyment of property had been violated as a result of the compulsory
letting of her land and its envisaged transfer to the tenants and
that she had been discriminated against in that respect.
- By
a decision of 12 September 2006 the Court declared the application
partly admissible.
-
The applicant and the Government each submitted further written
observations (Rule 59 § 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine), the parties replied in writing to
each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background information
- The applicant was born in 1925 and lives in Bratislava.
- In
1938 the applicant's father acquired land in Levoča.
After the Second World War, when the communist regime was installed
in Czechoslovakia, the State availed itself of the land and put it at
the disposal of a State-owned agricultural farm in Levoča
without the owner's consent and without paying any compensation. The
applicant's father remained the owner of the land in name (nuda
proprietas).
- In
1983 the farm put the land, of which the applicant and her four
sisters had become the owners in the meantime, at the disposal of the
local organisation of the Slovak Union of Gardeners in Levoča
for ten years. The owners were provided with no compensation.
- In
accordance with the provisions of the Land Ownership Act 1991, the
gardeners' right to use the land was extended by ten years in 1993.
- Levoča
is nowadays a district town with approximately 15,000
inhabitants. According to the data in the land register, the
applicant's land is situated outside the town's built-up area.
B. Proceedings concerning the payment of rent
- On
23 June 1994 the applicant sued the users of the land for rent. She
claimed that the tenants should pay her two Slovak korunas (SKK) per
square metre of land a year for the period from 24 June 1991 to
31 December 1994.
- On
15 May 2003 the Spišská Nová
Ves District Court obliged the tenants to pay the applicant a
rent of SKK 0.1 per square metre of land for the period from 24 June
1991 to 31 December 1991, and SKK 0.3 for the period from 1
January 1992 to 31 December 1994.
- As
to the former period, the rent due was up to 1.5% of the
administrative value of the land. Part of the applicant's land was
classified as pasture and its value under the applicable regulation
was SKK 0.5 per square metre. The remaining part of the plot was
classified as arable land and its value was SKK 0.65 per square
metre. Under the law in force the applicant was thus entitled to a
total sum of SKK 10.1 as rent for the above period in 1991. However,
since the gardeners had agreed to pay SKK 0.1 per square metre for
the use of the land the court accepted that sum as the basis for
determination of the rent. The rent due for that period was thus SKK
126.9.
- As
to the second period, that is from 1 January 1992 to 31 December
1994, valuation of land was governed by Regulation 465/1991.
According to this, the arable part of the applicant's land had the
value of SKK 0.5 per square metre and the remainder SKK 0.375.
Compensation for temporary use of the land was to be agreed upon by
the parties. Since no such agreement had been reached, the District
Court considered it appropriate that the gardeners should pay SKK 0.3
per square metre per year. It had thereby also regard, as reference,
to section 4(1) of Law no. 64/1997. The decision stated that the sum
claimed by the applicant, namely SKK 2 per square metre, was too
high, considering the location of the land and the gardeners'
contribution to increasing its quality.
- The
applicant appealed. She argued that the first-instance court had not
correctly determined the surface area of her share in the plot used
by the gardeners and that the rent due had not been determined
correctly.
- On
30 October 2003 the Košice Regional Court granted the
applicant's claim in part, in that it held that the gardeners were
obliged to pay rent in respect of the overall land covered by the
contract of 1983, that is also on its parts which, according to the
gardeners, could not be used for gardening because of a steep slope.
The surface area of the applicant's land for which rent was due was
2,804.4 square metres. As to the amount of rent due, the
regional court upheld the first-instance judgment. Finally, the court
of appeal drew the applicant's attention to the Constitutional
Court's judgment PL ÚS 17/00 addressing
conformity with the Constitution and Article 1 of Protocol No. 1 of
certain provisions of Law no. 64/1997 (for further details concerning
that judgment see Urbárska obec Trenčianske Biskupice
v. Slovakia, no. 74258/01, §§ 67-79, ECHR 2007 ...
(extracts)).
- On
16 December 2008 the applicant informed the Court that the gardeners
had paid SKK 11,030 to her for the use of her land between 1991 and
2008. That sum was based on a yearly rental value of SKK 0.1 per
square metre initially and later on SKK 0.3 per square metre.
C. Proceedings under Law no. 64/1997
- On
21 June 1999 the gardeners requested, under section 7(1) of Law no.
64/1997, that the ownership relationship in respect of their gardens
be settled by the Levoča District
Office in a land consolidation procedure under section 7(4) of that
Act.
- On
22 February 2000 the district office made a formal announcement under
section 18(1) of Law no. 64/1997 of the commencement of the land
consolidation procedure pursuant to section 7(4) of that Act. On 8
March 2000 it published a register of the original ownership and a
surveyor's plan concerning the current state of the land (“the
preliminary inventory”). By a decision of 11 May 2000 the
administrative authority approved the preliminary inventory.
- On
22 June 2001 the district office dismissed the applicant's objection
to the preliminary inventory. On 5 November 2001, upon the
applicant's appeal, the Prešov Regional Office quashed the
contested decision due to procedural shortcomings.
- In
the subsequent proceedings, on 21 February 2003, the applicant
objected to the inventory, in particular to the area of land covered
by it. The district office dismissed the objection on 21 March 2003.
On 20 July 2006 the Regional Land Office in Prešov
dismissed the applicant's appeal. On 22 June 2006 the
applicant sought a judicial review of that decision.
- In
a decision of 23 October 2006 the District Land Office in Poprad
approved the preliminary inventory. In that context, the
administrative value of the applicant's land was established at SKK
0.5 per square metre. Since the minimum amount for compensation was
SKK 3, the administrative authority took the latter sum as a basis
for assessment and increased the valuation of the applicant's land to
SKK 6 on the ground of its location. The applicant appealed.
- On
8 February 2007 the regional land office stayed the proceedings
pending the determination by a court of the applicant's action
against the regional land office's decision of 20 July 2006.
- On
20 May 2008 the Prešov Regional Court quashed the
last-mentioned decision. It granted the applicant's argument that the
whole land put at the disposal of the association of gardeners should
be taken into consideration in the consolidation procedure regardless
of whether it was used for gardening purposes or not. The court
further held that the administrative authorities had not established
the relevant facts with sufficient certainty.
- On
7 November 2008 the regional land office quashed the district
office's decision of 21 March 2003 dismissing the applicant's
objection to the preliminary inventory.
- In
the meantime, on 26 October 2006, the director of the district land
office in a letter stated that, according to an inventory of the
original state of the land, the value of the applicant's land was SKK
0.5 per square metre. Compensation under section 11 of Law no.
64/1997 was SKK 6 (the equivalent of approximately EUR 0.2) per
square metre.
- The
land consolidation procedure under Law no. 64/1997 is pending before
the administrative authorities.
28. On
2 April 2009, at the Government's request, the Forensic
Engineering Institute in Zilina elaborated
an opinion on the value of the applicant's land as of 20 March 2009.
It noted that the applicant owned 2,804 square metres of land in the
area concerned which, according to the zoning plan, was to be used
exclusively for gardening purposes. The institute estimated the
general value of the land at EUR 6.47 per square metre and its
general rental value at EUR 0.448 per square metre per year.
- The
applicant, with reference to several decisions on sale of real
property approved by the Levoča municipal
council, submitted that the current market value of her land was at
least EUR 16.6 per square metre. She considered its annual rental
value to be no less than EUR 0.664 per square metre.
D. Proceedings concerning the applicant's claim of 2001
- On
13 July 2001 the applicant sued the gardeners' association before the
Poprad District Court. She claimed that the defendant's right to use
her land should be cancelled. The applicant argued that the gardeners
had disregarded the contract on use of the land of 1983. In
particular, the surface of certain individual gardens exceeded the
limit of 200 square metres and the surface of some of the gardeners'
huts exceeded 16 square metres contrary to what the 1983 contract
stipulated.
- On
11 September 2002 the District Court dismissed the action. It held
that the use of the land was governed by the relevant provisions of
the Land Ownership Act 1991 and of Law no. 64/1997. The
applicant appealed. She argued that the gardeners were bound by the
contract of 1983 and that they had failed to respect its provisions.
- On
8 March 2004 the Prešov Regional
Court upheld the first-instance judgment as being in compliance with
the applicable law. The court of appeal further pointed out that
individual gardeners had become tenants of the land after the entry
into force of Law no. 64/1997 on 26 March 1997. The defendant
association could therefore no longer be considered as a user of the
applicant's land.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution and practice of the Constitutional
Court
- Article
152 § 4 of the Constitution provides that constitutional laws,
laws and other generally binding legal regulations are to be
interpreted and applied in conformity with the Constitution.
- Pursuant
to Article 154c § 1 of the Constitution, international treaties
on human rights and fundamental freedoms which the Slovak Republic
has ratified and were promulgated in the manner laid down by a law
prior to the entry into force of Constitutional Act 90/2001 on 1 July
2001 form a part of its legal order and have precedence over laws
where they provide for a larger scope of constitutional rights and
freedoms.
- In
judgment I. ÚS 36/02 delivered on 30
April 2003 the Constitutional Court, with reference to Articles 152 §
4 and 154c § 1 of the Constitution, held that the Convention and
the case-law of its bodies represent binding guidelines for national
authorities on interpretation and implementation of legal provisions
bearing on fundamental rights and freedoms. The Convention and the
case-law of its organs thus set a framework which the national
authorities cannot overstep when dealing with a case. The same view
was expressed in its judgment I. ÚS 239/04
of 26 October 2005.
- On
15 October 2003 the Constitutional Court delivered a judgment in
proceedings III. ÚS 138/03. The case concerned alleged flaws
in proceedings on implementation of a consolidation project under Law
no. 64/1997. In particular, the plaintiff complained that by its
decision to discontinue the proceedings concerning lawfulness of the
administrative authorities' decisions a court had breached his rights
to judicial protection and to own property.
- The
Constitutional Court granted the complaint considering that the court
should have dealt with the merits of the case. It returned the case
to the ordinary court for further proceedings.
B. The Land Ownership Act 1991
38. The
Land Ownership Act 1991 (Zákon o
úprave vlastníckych vzťahov
k pôde a inému poľnohospodárskemu majetku)
entered into force on 24 June 1991.
- Paragraph
2 of section 22 provides that from the date of entry into force of
the Act and unless a different agreement is reached with the owner,
the user of the land shall acquire tenancy rights in respect of it.
- Under
section 22(3), as in force until 25 March 1997, in cases where the
land was used by individual gardeners on an allotment site the
tenancy could not be terminated before expiry of the period for which
the land had been originally put at the disposal of the users. Unless
the parties otherwise agreed, the tenants had the right to have the
tenancy extended by another ten years. The rent and the purchase
price in respect of such land were to be determined on the basis of
the classification and quality of the land at the time when the
gardeners' right to use it had been established.
C. Law no. 64/1997
- Law
no. 64/1997 on the use of plots of land in allotment gardens and
arrangements as regards their ownership (Zákon
o uZívaní pozemkov v
zriadených záhradkových osadách a
vyporiadaní vlastníctva k nim) governs
the use of land within allotment gardens and the transfer of
ownership rights in respect of such land. It entered into force on 11
March 1997 and took effect on 26 March 1997. It repealed
section 22(3) of the Land Ownership Act 1991.
- Its
relevant provisions, domestic practice as well as the general
background to the use and consolidation of land used by garden
communities are set out in Urbárska obec Trenčianske
Biskupice (cited above, §§ 7-13, 49-65 and 67-79).
- Pursuant
to section 4(1), as in force until 31 October 2004, the yearly rent
for the use of plots of land in allotment gardens is ten per cent of
their value as established under section 15(5-7) of Regulation 465/91
of the Ministry of Finance, the minimum sum being SKK 0.3 per square
metre.
- Since
1 November 2004, when Regulation 465/1991 was repealed, section 4(1)
of Law no. 64/1997 has fixed the rent in respect of the land in
allotments at 10% of its value, as determined in accordance with a
special law. Reference is made to the Land Consolidation Act 1991, as
amended. Section 43(2) of that Act empowers the Ministry of
Agriculture to issue a binding regulation in that respect (Regulation
38/2005, see below).
D. Regulation 456/1991
- Regulation
465/1991 of the Ministry of Finance of 25 October 1991, as amended,
governed determination of the price of buildings and plots of land
and compensation for the use of land. It concerned the value of
property for administrative purposes. It was repealed on 1 January
2004. Section 15(5-7) provides that the price of plots of land
registered as arable land, orchards, vineyards, meadows or pasture is
to be fixed in accordance with Annex 8 to the Regulation. In the case
of meadows and pasture the price is 0.75% of the price indicated in
Annex 8. The annex provides for prices per square metre ranging from
SKK 12.1 to SKK 0.5 according to the quality and classification
of the land.
E. Regulation 38/2005
- Regulation
38/2005 of the Ministry of Agriculture governs valuation of plots of
land and vegetation on it for the purpose of proceedings under the
Land Consolidation Act 1991 (see Urbárska obec Trenčianske
Biskupice, cited above, §§ 45-48). It was enacted with
effect from 15 February 2005.
- In
it valuation is based on a scheme of “quality pedo-ecological
units” (bonitované pôdno-ekologické
jednotky) categorising agricultural land and other areas in
Slovakia. Section 1(5) provides that such valuation is applicable
also to gardens located outside a municipality's built-up area. The
scheme provides for value of agricultural land within a range from
EUR 0.0216 to EUR 0.402 (Annex 1). Pursuant to Annex 5, the
value of a particular plot is determined by multiplying the unitary
value as set out in Annex 1 by its surface area.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION AND THE SCOPE OF
THE CASE
A. Government's objection relating to the complaint
about the proceedings under Law no. 64/1997
- The
Government objected that the complaint concerning the transfer of
land to the gardeners pursuant to Law no. 64/1997 was premature. They
submitted that in the domestic proceedings no final decision had been
given on the issues relevant for determination of this part of the
application.
- With
reference to Article 154c § 1 of the Constitution the Government
maintained that the domestic authorities, when determining those
issues, were bound to have regard to the relevant part of the Court's
judgment in Urbárska obec Trenčianske Biskupice
concluding that the application of the
relevant law had been in breach of the guarantees of Article 1 of
Protocol No. 1. A Slovak translation of that judgment had been
published in the law journal Judicial Review in April
2008; it had also been distributed to administrative
authorities, ordinary courts and the Constitutional Court.
- The
applicant disagreed.
- The
Court reiterates that Article 35 § 4 of the Convention in
fine enables it to dismiss an application it considers
inadmissible “at any stage of the proceedings”. Thus,
even at the merits stage the Court may reconsider a decision to
declare an application admissible if it concludes that it should be
declared inadmissible for one of the reasons given in the first three
paragraphs of Article 35 of the Convention (see, for example, Kovačić
and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and
48316/99, § 262, 3 October 2008 or DruZstevní
ZáloZna Pria and Others v. the Czech Republic, no.
72034/01, § 101, 31 July 2008).
- The
Court has taken note of further relevant developments in the land
consolidation proceedings complained of in the period subsequent to
its decision on admissibility of the application of 12 September 2006
(see paragraphs 22-27 above). As a result of those developments,
the issues relevant to an assessment of the position in the case,
such as the compensation the applicant is to receive for her land
(see also Urbárska obec Trenčianske Biskupice,
cited above, §§ 121-125 and 132), still remain to be
determined with final effect by the domestic authorities.
- In
these circumstances, it is only after those issues have been
determined at national level and in the event that the applicant
considers the relevant decisions to be contrary to her rights under
the Convention that the Court can examine this part of the
application. Accordingly, the applicant's complaint under Article 1
of Protocol No. 1, both taken alone and in conjunction with Article
14 of the Convention, about the land consolidation proceedings
pursuant to Law no. 64/1997 is premature.
- In
the light of the foregoing, the Court rejects this part of the
application under Article 35 §§ 1 and 4 of
the Convention for non-exhaustion of domestic remedies.
B. The remaining part of the application – scope
of the case
- In
her submissions the applicant maintained that the compulsory renting
out of her land, under both the Land Ownership Act 1991 and Law no.
64/1997, was in breach of Article 1 of Protocol No. 1, both taken
alone and in conjunction with Article 14 of the Convention.
- The
Court declared admissible the applicant's complaint concerning “the
compulsory lease” of her land (see the operative part of the
admissibility decision of 12 September 2006, p. 13 in fine).
In the “Law” part of that decision the Court exclusively
referred to “the compulsory lease of the land under section 3
et seq. of Law no. 64/1997” (see pp. 10-11).
- Thus,
as to the applicant's complaint about the lease of her land under the
Land Ownership Act 1991, the Court made no specific decision on it at
the admissibility stage.
- In
this respect, the Court notes that the proceedings before domestic
courts initiated by the applicant concerned rent for the period from
1991 to 1994 (see paragraph 11 above). The proceedings were ended by
the regional court's decision of 30 October 2003 (see paragraph 16
above). To the extent that the applicant may be understood as
considering unlawful or erroneous the ordinary courts' decisions on
her claim, it was open to her to seek redress before the
Constitutional Court pursuant to Article 127 of the Constitution
which had been enacted with effect from 1 January 2002 (for further
details concerning that remedy see, for example, Andrášik
and Others v. Slovakia (dec.), nos. 57984/00, 60237/00,
60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, 22 October
2002). Since the applicant failed to use that remedy, she did not
exhaust domestic remedies as required by Article 35 § 1 of the
Convention.
- To
the extent that the applicant can be understood as alleging that the
breach of her rights resulted from the way in which the Land
Ownership Act 1991 governed the renting out of her land, the Court
notes that the relevant provisions of that Act ceased to be
applicable on 25 March 1997 and were replaced with effect from 26
March 1997 by sections 3 et seq. of Law no. 64/1997 (see paragraphs
40-41 above).
- The
applicant has had no remedy at her disposal in that respect since the
Constitutional Court has held that it lacks jurisdiction to examine a
complaint lodged by natural or legal persons when the determination
of the point in issue involves the preliminary question of conflict
of legal rules (see, for example, Urbárska obec Trenčianske
Biskupice, cited above, § 80). In these circumstances, since
the relevant law ceased to be applicable on 25 March 1997 and
since the application was introduced on 22 February 2000, this part
of it was submitted outside the six-month time-limit laid down in
Article 35 § 1 of the Convention.
- It
follows that the applicant's complaints relating to the compulsory
lease of her land under the Land Ownership Act 1991 must be rejected
under Article 35 §§ 1 and 4 of the
Convention, partly as having been introduced out of time and partly
for non-exhaustion of domestic remedies.
- Accordingly,
the Court will further examine the complaints about the compulsory
lease under Law no. 64/1997.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that the lease of her land under Law no. 64/1997
was contrary to her rights under Article 1 of Protocol No. 1, which
reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
applicant maintained in particular that the interference complained
of could not be justified in the general interest of a democratic
society as it placed the gardeners at an advantage without any
justified reason. The owners had been unable to use the land for
forty years and the relevant law had impaired their situation in that
it had allowed the gardeners to continue benefiting from the land on
conditions which were detrimental to the owners. In particular, the
applicant alleged that the rent which the gardeners had been obliged
to pay for the use of her land was negligible compared with the
market rent which could be received for the land.
- The
Government admitted that the compulsory lease of the land under
sections 3 et seq. of Law no. 64/1997 constituted an interference
with the applicant's rights under Article 1 of Protocol No. 1. It
reflected the legislator's position, according to which it was in the
general interest that the rights of persons using the land for
gardening purposes should prevail over the rights of the owners of
the plots of the land in garden colonies. The work the gardeners had
done had considerably increased the value of the land, which at the
time the colonies were established had generally been unusable and of
low quality. The Government argued that a fair balance had been
struck between the general interest and the rights of the original
land owners. Given the margin of appreciation which the
Contracting States had in similar cases, the interference in issue
with the applicant's right to peacefully enjoy her possessions was
not contrary to the requirements of Article 1 of Protocol No. 1.
- The
Court reiterates that in Urbárska obec
Trenčianske Biskupice (cited above, §§
142-146) it held that the applicant association received particularly
low compensation for letting out its land to the gardeners. It
discerned no demands of the general interest sufficiently strong to
justify such a low level of rent, bearing no relation to the actual
value of the land. It therefore concluded 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 under Article 1 of Protocol No. 1 to
peaceful enjoyment of her possessions.
- In
the present case the Government argued that the actual rental value
of the applicant's land was EUR 0.448 per square metre per year,
whereas the applicant considered it to be no less than EUR 0.664 per
square metre (see paragraphs 28-29 above).
- Section
4(1) of Law no. 64/1997, as in force until 31 October 2004, entitled
the applicant to a lease equal to 10% of the value of her land,
determined in accordance with Regulation 465/1991, the minimum amount
being SKK 0.3 per square metre (see paragraph 43 above).
- The
documents before the Court indicate that the administrative value of
the applicant's land, for the purpose of Regulation 465/1991 in
conjunction with Law no. 64/1997, was at the lower end of the
applicable scale, which extended from SKK 0.5 to SKK 12.1 (see
paragraphs 14, 22 and 26 above). In accordance with the law in force
until 1 October 2004, the applicant was thus entitled only to the
minimum rent of SKK 0.3 (equivalent to EUR 0.01) as foreseen by
section 4(1) of Law no. 64/1997. That amount corresponds to
approximately 2% of the actual rental value of the land, based on the
valuation submitted by the Government.
- The
Court has taken into account that, due to the gradual increase in the
value of real property in Slovakia, the above ratio has not been the
same throughout the period during which Law no. 64/1997 has governed
the rent of the applicant's land. It nevertheless considers that,
similarly to the situation in Urbárska obec Trenčianske
Biskupice, the rent to which the
applicant was entitled during the above period bears no reasonable
relation to the market value of her land. It sees no justification
for such a discrepancy.
- As
to the period from 15 February 2005, the rent due represented 10% of
the value of the land as determined on the basis of Regulation
38/2005. It was thus within the range of EUR 0.002 to EUR 0.04
(see paragraph 47 above).
-
The parties have not specified the value of the applicant's land
under that Regulation. Nevertheless, and even assuming that the
applicant's land was classified within the highest category for the
purpose of Regulation 38/2005, the rent due would represent
approximately 9% of the market rental value, determined on the basis
of the actual value of the applicant's land as acknowledged by the
Government. There is thus no indication that the market value of
the land has been taken into account for the purpose of valuation
under Regulation 38/2005.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the compulsory letting of the applicant's land on the
basis of Law no. 64/1997, similarly to the situation in Urbárska
obec Trenčianske Biskupice
(cited above, § 146), has been contrary to her right to peaceful
enjoyment of her possessions.
There
has accordingly been a violation of Article 1 of Protocol No. 1 on
that ground.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicant complained that she had been discriminated against in that
under Law no. 64/1997 the gardeners were allowed to use her land to
the detriment of her ownership rights without any relevant
justification. She relied on Article 14 of the Convention, which
provides as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Government argued that the applicant had not shown that she had been
subjected to different treatment from other owners of land situated
in garden colonies.
- In
the light of its finding with regard to Article 1 of Protocol No. 1
(paragraph 73 above), the Court does not consider that a separate
examination of the merits of the case under Article 14 is necessary.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- As
regards pecuniary damage, the applicant claimed EUR 46,538 as
compensation for the transfer of her land to the gardeners at a price
below its market value. She also claimed EUR 33,141 in compensation
for the compulsory renting out of her land for the period from 1991
to 2008. That claim was based on a market rental value of EUR 0.664
per square metre per year on an eighteen-year compulsory lease, and
it took into account the sum of EUR 366 which the gardeners had paid
to the applicant.
Finally,
the applicant claimed EUR 13,278 in respect of non-pecuniary damage.
- The
Government contested the sums claimed by the applicant.
- The
Court declared inadmissible the applicant's complaint about the
scheduled transfer of her land and its compulsory lease during a
period prior to the coming into effect of Law no. 64/1997 (see
paragraphs 54 and 61 above). There is therefore no call to make any
award in that respect.
- As
to the claim concerning the compulsory lease under Law no. 64/1997,
the Court reiterates that, as regards pecuniary damage, where the
failure to strike a fair balance between the public interest and the
individual's rights, rather than illegality, was the basis of the
violation found, just satisfaction need not necessarily reflect the
idea of wiping out all the consequences of the interference in
question, and compensation need not always equal the full value of
the property (for recapitulation of the Court's practice see, for
example, Todorova and Others v. Bulgaria (just satisfaction),
nos. 48380/99, 51362/99,
60036/00 and 73465/01, §§ 7-10, 24 April 2008, with further
references).
- Having
regard to the sum paid by the gardeners (see paragraph 17), the fact
that the rental value of the applicant's land did not remain the same
during the relevant period (see paragraph 70), and in view of the
documents before it and the above considerations, the Court awards
the applicant EUR 9,000 in respect of pecuniary damage.
It
further awards her EUR 1,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed EUR 760 in respect of postal and telecommunication
costs, travel expenses, costs of translation and photocopying.
- The
Government objected that the applicant had not shown that she had
incurred the whole amount claimed.
- According
to the Court's case-law, applicants are entitled to the reimbursement
of their 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.
- In
the present case, the amount of EUR 715 has already been paid to the
applicant by way of legal aid for her legal representation in a part
of the proceedings (see paragraph 2 above). In these circumstances,
and having regard to the information in its possession and the above
criteria, the Court considers it reasonable to award the sum of EUR
300, plus any tax that may be chargeable to the applicant, in respect
of the remaining part of the proceedings before it.
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
- Declares inadmissible the applicant's complaints
about the compulsory letting of her land under the Land Ownership Act
1991 and its envisaged transfer to gardeners under Law no. 64/1997;
- Holds that there has been a violation of Article
1 of Protocol No. 1 as a result of the lease of the applicant's land
under Law no. 64/1997;
- Holds that it is unnecessary to examine the
merits of the applicant's complaint under Article 14 of the
Convention in conjunction with Article 1 of Protocol No. 1 concerning
the lease of her land under Law no. 64/1997;
- 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
9,000 (nine thousand euros) in respect of pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(iii) EUR
300 (three hundred euros), plus any tax that may be chargeable to the
applicant, 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 3 November 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
