AS TO THE ADMISSIBILITY OF
by Mária KOVÁČOVÁ and Others
The European Court of Human Rights (Fourth Section), sitting on 13 October 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 20 October 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, whose particulars appear in the Appendix, are four Slovak nationals. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants’ family owned a plot of land in the Lorinčík area. It was originally classified as a field. In the 1950s the State entrusted various public entities with the administration and use of the land, of which the members of the applicants’ family formally remained the owners. The applicants each inherited a share in the plot.
Under a contract of 1980 the right of temporary use of the land was eventually conferred on the Slovakian Union of Fruiterers and Gardeners for a period of thirty years.
The area where the plot is located was turned into a “garden community” consisting of individual gardens which were put at the disposal of third parties, members of the above Union (“the gardeners”). The plot was reclassified as a garden and it has since been used as such a garden.
In the early 1990s the applicants commenced asserting their rights in respect of the plot. The relevant action and proceedings are described below.
1. Proceedings on the applicants’ claim for a part of their land to be vacated (the Košice II District Court file number 17C 1130/95)
On 14 February 2005 the Košice II District Court granted the applicants’ action of 1995 and ordered the gardeners to vacate land which was outside the limits of the garden community.
The applicants appealed only against the decision relating to the costs of the proceedings. One of them, Ms M. Kováčová, also complained that no compensation had been paid for the use of their land in the garden allotment.
On 28 April 2006 the Košice Regional Court ordered the first-instance court to review its decision on the costs of the proceedings. The claim for compensation was outside the purview of the court of appeal as the plaintiff had not submitted it in the proceedings at first instance. The remaining part of the District Court’s judgment became final.
2. Proceedings for payment of rent (the Košice II District Court file number 17C 1131/95)
As from 1992 the applicants repeatedly and unsuccessfully attempted to conclude a lease contract with the gardeners.
In a letter of 5 March 1993 one of the applicants stated that she considered 1 to 3 Slovak korunas (SKK) per square metre and year to be a reasonable sum.
On 27 December 1995 the applicants lodged an action with the Košice II District Court. They claimed payment of rent in respect of the land used by the gardeners for the period between 2 August 1993 and 2 August 1996. They relied on section 22(2) of the Land Ownership Act 1991, which provides that if no other arrangement has been made between an owner and an occupant of land in a garden community, their relationship would become ex lege that of the parties to a lease. The applicants also claimed that the defendants should be ordered to vacate the land.
In the subsequent proceedings the District Court had regard to two expert opinions. It noted that under the law then in force (Regulation 465/1991 which governed valuation of property for administrative purposes) the maximum rent for similar land was four Slovakian korunas (SKK) per square metre.
At a hearing held on 24 February 2004 the applicants stated that they claimed SKK 2.9 as yearly rent for a square metre of their land.
In its judgment of 20 March 2006 it held that the amount claimed by the applicants, namely SKK 2.9 per square metre plus default interest, was appropriate. It therefore granted their action. The defendant appealed.
The case was subsequently remitted at first instance.
On 2 May 2008 a different expert concluded, with reference to Regulation 465/1991 and the Land Ownership Act 1991, that the rental value of the applicants’ land had been SKK 0.07285 per square metre between 1993 and 1996.
On 28 May 2008 the applicants challenged that valuation. With reference to the relevant regulation they alleged that in the area concerned the rent was fixed at SKK 4 per square metre.
On 7 September 2009 the District Court ordered a fourth expert opinion on the rental value of the applicants’ land between 2 August 1993 and 2 August 1996.
The proceedings are pending.
3. Proceedings under Law no. 64/1997
On 16 January 1998 the gardeners requested under section 7(1) of 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 – “Law no. 64/1997”) that the tenancy and ownership relations in respect of their gardens be settled by the Košice II District Office in a land consolidation procedure under section 7(4) of that Act.
On 20 August 1999 the district office made a formal announcement to the applicants under section 18(1) of Law no. 64/1997 of the commencement of the procedure under section 7(4) of the Act. The announcement contained a register of the original ownership and a surveyor’s plan concerning the current state of the land (“the preliminary inventory”). The applicants had an option to buy the constructions and vegetation situated on their plot.
On 4 November 1999 the district office approved the preliminary inventory under section 9(4) of the 1997 Act, observing that no objections to it had been raised.
On 19 November 1999 the applicants challenged the decision of 4 November 1999 by an administrative appeal. They opposed the consolidation procedure as such; claimed that the gardeners’ use of their land was illegitimate; challenged inconsistencies in the preliminary inventory; and invoked the protection of their property rights under the Constitution.
On 31 January 2000, following a hearing, the Košice Regional Office quashed the decision of 4 November 1999 and remitted the matter to the district office for re-consideration. It held that the District Office had failed to examine adequately whether the gardeners’ request of 16 January 1998 complied with the applicable procedural requirements and to determine objections which the applicants had raised in various forms in respect of the consolidation procedure and the preliminary inventory.
On 14 February 2000 the district office decided to stay the proceedings under Law no. 64/1997. The determination of the validity of the contract of 1980, which had been challenged by the land owners, was prejudicial to the consolidation procedure. Ms M. Kováčová, who had raised that objection, was invited to institute separate proceedings before a court within thirty days with a view to having that issue determined.
On 3 August 2000 the district office decided to resume the proceedings as it had been established that Ms M. Kováčová had not complied with the above instruction in that she had failed to challenge the contract of 1980 before a civil court. There was thus no obstacle to the land consolidation. On the same day the district office again approved the preliminary inventory.
On 24 October 2000, on Ms M. Kováčová’s appeal, the regional office upheld the decision of 3 August 2000.
On 20 February 2001 the district office invited the applicants under section 10(1) of Law no. 64/1997 to state whether they preferred to be compensated by being granted a substitute plot or paid an amount of money in lieu of their land. As to the substitute plot, a specific proposal was made.
On 28 September 2001 the district office ruled that three of the applicants were to be compensated financially as they had made no claim for substitute land.
On 25 September 2002 the regional office ruled that the remaining applicant, Ms M. Kováčová, would also be compensated financially on the ground that she had rejected the proposed plot. The decision was upheld on her appeal on 18 November 2002 by the Ministry of Agriculture. Its decision stated, inter alia, that the plaintiff challenged the validity of the legal act of 1980 which placed the land at the gardeners’ disposal and that it was open to her to bring a civil action with a view to having that issue determined.
On 6 February 2003 the district office approved a project of consolidation of the land in question. On 12 March 2003 it ordered its implementation. The project presupposed that the gardeners would become the owners of their gardens and that the original owners of the land concerned would become the owners of specific substitute land or, as in the case of the applicants, would be financially compensated. The relevant documents indicate that the compensation payable to the applicants amounted to SKK 7.5 per square metre of their land. On 18 August 2003 the Regional Office upheld that decision.
On 19 September and 1 December 2003 respectively the district office and, on the applicants’ appeal, the regional office, approved the implementation of the project. The decision became final and binding on 11 December 2003. By virtue of that decision the gardeners became the owners of their gardens. In 2004 their ownership title was recorded in the Land Registry.
Ms M. Kováčová’s request for the reopening of the proceedings was refused on 25 August and 8 November 2004 by the regional office and, on her appeal, by the Ministry of Agriculture on the ground that she had not submitted new relevant information within the meaning of the applicable procedural rules. The administrative authorities had regard to the applicant’s argument that the contract of 1980 allowing the gardeners to use the land was void. They noted that the plaintiff, despite several requests, had not been shown to have challenged the validity of that contract before a court.
On 16 May 2007 the Košice Regional Court dismissed the applicants’ action challenging the lawfulness of the administrative authorities’ order of 2003 for implementation of the consolidation project under Law no. 64/1997. The judgment stated, inter alia, that in the context of the proceedings complained of, that is concerning the order for implementation of the consolidation project, the administrative authorities could no longer examine the argument about alleged flaws in the 1980 contract under which the land had been put at the gardeners’ disposal. That issue fell to be determined by a civil court in a separate set of proceedings. The Regional Court found no flaws rendering unlawful the proceedings complained of and the decisions taken.
The applicants appealed and argued that the regional court had disregarded their arguments about flaws in the 1980 contract.
On 16 April 2008 the Supreme Court upheld the first-instance judgment.
The Supreme Court’s judgment was served on the advocate representing the applicants on 7 August 2008. He sent it to the applicants on 15 October 2008.
On 7 and 8 January 2009 Ms M. Kováčová lodged a complaint with the Constitutional Court. She complained under Article 1 of Protocol No. 1 that in proceedings under Law no. 64/1997 she had been deprived of her property without appropriate compensation. She referred to the above administrative decisions of 6 February 2003 and 12 March 2003 and to the judgments of the regional court and the Supreme Court of 16 May 2007 and 16 April 2008 respectively. She expressly stated that she challenged Law no. 64/1997 and maintained that there was no public interest in a transfer of her land to the gardeners under its provisions.
On 4 February 2009 the Constitutional Court rejected the complaint on the ground that the applicant had not lodged it within the two-month time-limit laid down in the Constitutional Court Act 1993.
In an opinion prepared at the applicants’ request and dated 12 February 2009 an expert in valuation of real estates concluded that the market value of the applicants’ land, as on 9 February 2009, was 32.59 euros (EUR) per square metre. The opinion stated that the land was situated within a municipality belonging to the town of Košice, which was the seat of regional authorities and institutions. It was within ten minutes’ drive of the town centre and the locality was a popular residential area for the town’s inhabitants.
At the Government’s request the Forensic Engineering Institute in Zilina determined the market value of the property in an opinion of 5 April 2009. It concluded that in December 2003, when the land had been transferred to the gardeners, its general value had been EUR 9.14 per square metre.
B. Relevant domestic law and practice
The relevant domestic law and practice, as well as the general background to consolidation of land used by garden communities, are set out in Urbárska obec Trenčianske Biskupice v. Slovakia, no. 74258/01, §§ 7-13 and 40-80, ECHR 2007 ... (extracts)).
In addition, the following legal provisions and practice are relevant in the present case.
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 broader array 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 could not 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.
The applicants complained under Article 1 of Protocol No. 1 that the gardeners used their land without compensation and about its subsequent transfer to the gardeners.
The applicants complained that they received no compensation for the compulsory letting of their plot of land and about its subsequent transfer to the tenants. They relied on 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.”
A. Arguments of the parties
The Government objected that the applicants had not exhausted domestic remedies as required by Article 35 § 1 of the Convention.
Firstly, as regards the proceedings under Law no. 64/1997 leading to the transfer of their land to the gardeners, the applicants should have sought a judicial determination of the validity of 1980 contract before ordinary courts and, after 1 January 2002, also the Constitutional Court.
Secondly, the proceedings concerning the rent were still pending. With reference to Article 154c § 1 of the Constitution the Government maintained that the domestic authorities, when determining the issue, were bound to have regard to the relevant part of the Court’s judgment in Urbárska obec Trenčianske Biskupice, which concluded 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 been also distributed to administrative authorities, ordinary courts and the Constitutional Court.
Finally, and to the extent that the applicants challenged Law no. 64/1997 as such, the Government were of the opinion that the application had been submitted outside the six-month time-limit laid down in Article 35 § 1 of the Convention. In their view that time-limit had started running on 26 March 1997 when that piece of legislation took effect.
The applicants disagreed with the Government and maintained that their rights under Article 1 of Protocol No. 1 had been infringed. In particular, the compensation for their land disregarded its actual value and was disproportionately low. They further argued that the rent due, as determined in the above expert opinion of 2 May 2008, was disproportionately low.
B. The Court’s assessment
1. Complaint about the transfer of land
The Court reiterates that the rule of exhaustion of domestic remedies obliges those seeking to bring their case against the State before an international judicial organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems (see Aksoy v. Turkey, 18 December 1996, § 51, Reports of Judgments and Decisions 1996-VI).
In order to exhaust domestic remedies as required by Article 35 § 1 of the Convention, applicants should use the remedies available in compliance with the formal requirements and time-limits laid down in domestic law, as interpreted and applied by domestic courts (see Akdivar and Others v. Turkey, 16 September 1996, § 60, Reports 1996-IV).
In Urbárska obec Trenčianske Biskupice (cited above, §§ 85 and 86), where the applicant association exclusively complained of the effects of the application of Law no. 64/1997, the Court held that the applicant had no directly accessible remedy at its disposal permitting determination of that aspect of the case. It noted, in particular, that ordinary courts called upon to review the relevant administrative decisions in proceedings under Law no. 64/1997 were unlikely to review issues other than the correct implementation of the relevant law.
In this respect the position in the present case is different as the applicants objected to flaws in the procedure leading to the transfer of their land to gardeners. Most importantly, they argued that the statutory requirements for such procedure had not been met, as the 1980 contract on the basis of which the gardeners used their land was void.
In these circumstances, the Court agrees with the Government that it was open to the applicants to seek redress before domestic authorities in respect of the alleged flaws in the procedure under Law no. 64/1997. In particular, that Act would not have been applicable to their case if it had been shown, as they alleged, that the 1980 contract was void.
Ms M. Kováčová raised an objection to that effect at the initial stage of the proceedings, when the preliminary inventory of the land was being prepared. In reaction, on 14 February 2000, the district office decided to stay the land consolidation procedure as it accepted that the determination of the validity of the 1980 contract was prejudicial to that procedure. As that issue fell to be determined by a court, Ms M. Kováčová was invited to institute separate judicial proceedings within thirty days. On 3 August 2000 the district office decided to resume the land consolidation procedure as it had been established that the above instruction had not been complied with.
It is true that the applicants raised the same argument both at subsequent stages of the land consolidation procedure and in the context of separate sets of proceedings which concerned their different claims.
However, the domestic authorities, including ordinary courts at two levels, held that for the purpose of proceedings under Law no. 64/1997 the applicants should have sought a judicial determination of the validity of the 1980 contract at the initial stage of those proceedings. They had failed to do so and that shortcoming could not be remedied at subsequent stages. Furthermore, as regards the proceedings leading to the Supreme Court’s judgment of 16 April 2008 the applicants failed to lodge their complaint to the Constitutional Court within the statutory time-limit. The Constitutional Court was therefore prevented from addressing the merits of their complaint.
In these circumstances the Court accepts the Government’s argument that the applicants failed to use the remedies available under Slovakian law.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Complaint about the compulsory lease
In the present case the applicants initially complained that they were unable to obtain rent from the gardeners to which they were entitled. In particular, they referred to the gardeners’ refusal to conclude a contract and accept the sum of SKK 2.9 as the yearly rent for a square metre of their land.
In their observations dated 25 October 2005 submitted in reply to those of the Government the applicants put forward no specific arguments about the lease of their land notwithstanding that the Court had invited the parties to do so.
On 18 November 2008 the Court asked the parties to submit additional observations in view of the conclusions which it had reached in Urbárska obec Trenčianske Biskupice (cited above, §§ 142-146) in respect of, inter alia, the compulsory lease of the applicant’s land.
In reply to the Court’s question, the applicants in the present case pointed to the above expert opinion of 2 May 2008 submitted in the context of the proceedings concerning their action and according to which the rental value of their land had been SKK 0.07285 per square metre between 1993 and 1996.
In view of the documents before it, the Court concludes that this part of the application is directed against the proceedings concerning the applicants’ action for rent of 1995. The points in issue in those proceedings concern, in particular, the gardeners’ obligation to pay rent, the valuation of the applicants’ land pursuant to the applicable law and the determination of rent to which the applicants’ are entitled under domestic law. As to the last mentioned point, the applicants have claimed SKK 2.9 per square metre and year even though under the relevant regulation the rent could amount to SKK 4 per square metre in the area concerned.
The proceedings are still pending at first instance. Thus the relevant issues, which fall under the jurisdiction of the Slovak courts, remain to be determined at domestic level. The applicants’ complaints about those proceedings are therefore premature.
In the absence of any specific argument of the applicants, the Court is not required to examine, as it did in Urbárska obec Trenčianske Biskupice (cited above), whether the compulsory letting of the applicants’ land on the basis of the rental terms set out in the applicable statutory provisions was in breach of their right under Article 1 of Protocol No. 1.
It follows that this complaint must also be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza
LIST OF THE APPLICANTS
2. Ms Kristína Kozáková, born in 1956 and living in Košice.