THIRD SECTION
CASE OF
VRABEC AND OTHERS v. SLOVAKIA
(Application no.
31312/08)
JUDGMENT
STRASBOURG
26 March 2013
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 Vrabec and Others v. Slovakia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 5 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
31312/08) 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 five Slovak nationals, whose particulars appear in the appendix
(“the applicants”).
The applicants were represented by Mr J. Mochnacký,
a lawyer practising in Lučenec. The Government of the
Slovak Republic (“the Government”) were represented by their Agent, Mrs M.
Pirošíková.
The applicants alleged, in particular, that the
courts had failed to address their arguments and had dismissed their claim for
restitution of real property arbitrarily, in disregard of the principal of legal
certainty.
On 2 December 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
In 1951 the State authorities took more than
three hectares of land from a relative of the applicants. No compensation was
paid to the owner.
The applicants unsuccessfully claimed restitution
of the land under Law no. 503/2003. In particular, in a judgment of 13 December
2006 the Supreme Court held, in a review of the decisions made at lower levels
of jurisdiction, that the land had been formally transferred to the State
pursuant to Ordinance 15/1959. Section 3 of Law no. 503/2003 did not include such
a situation as grounds for restitution of property. The applicants could
have claimed restitution of the land earlier, under Law no. 403/1990, but they
had not done so.
On 23 April 2007 the applicants lodged a
complaint with the Constitutional Court. They alleged a breach of Article 6 § 1
of the Convention, and also of their constitutional right to own property.
In particular, the applicants argued that the
land had been expropriated without compensation. It was therefore liable to
restitution under section 3(1)(m) and (n) of Law no. 503/2003,
irrespective of the fact that that law contained no reference to Ordinance
15/1959. They referred to the Supreme Court’s judgment 3SžoKS
130/2005 of 9 June 2006, which found that a situation similar to that of
the applicants fell under Law no. 503/2003.
On 25 October 2007 the Constitutional Court
dismissed the complaint (decision III. ÚS 287/07). It held
that the Supreme Court had given sufficient reasons for its judgment, which was
neither arbitrary nor otherwise contrary to the constitutional principles. It
was not for the Constitutional Court to review the way in which ordinary courts
interpreted and applied the law unless it resulted in a breach of the
Constitution.
The decision was served on 18 December 2007.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Law no. 503/2003
Law no 503/2003 governs restitution of
agricultural land and forests.
Cases in which land is to be restored to owners
or their successors are listed in section 3. In particular, sub-section 1(m) of
section 3 refers to situations where land has been expropriated without
compensation. Sub-section 1(n) refers to nationalisation contrary to the
legal rules then in force or without compensation.
B. The Supreme Court’s practice
In its judgment 3SžoKS 130/2005
of 9 June 2006 the Supreme Court held that transfer of property under Ordinance
15/1959 without compensation was to be qualified as a reason for restitution of
such property under section 3(1)(m) of Law no. 503/2003. Any other
interpretation of that provision would run contrary to the Constitution.
The same conclusion was reached in judgment 6 Sžo 240/2008 of 14 October 2009 as rectified by the decision
under the same file number of 27 November 2009.
In an unspecified number of other decisions the
Supreme Court expressed a different view on the matter, namely the same as expressed
in the above judgment on the applicant’s case of 13 December 2006.
C. The Constitutional Court’s practice
In judgment IV. ÚS 209/2010 of 16
September 2010 the Constitutional Court found, with reference to the Supreme
Court judgments 3SžoKS 130/2005 of 9 June 2006 and 6 Sžo 240/2008 of 14 October 2009 (see paragraphs 13 and 14 above),
that the varying practice on the part of the Supreme Court when determining
whether expropriation of land under Ordinance 15/1959 fell under Law
no. 503/2003 ran contrary to the principle of legal certainty. That in
itself justified the conclusion that the plaintiff’s constitutional rights had
been breached.
In the same judgment the Constitutional Court
further found that the Supreme Court’s view, that land expropriated under
Ordinance 15/1959 could not be restored under Law no. 503/2003, was
formalistic and contrary to the purpose of that Law. The explanatory report to
Law no. 503/2003 specified that it extended to individuals who could have, but
had not, submitted their claim within time-limits set in different pieces of
legislation which had been enacted previously.
The Constitutional Court quashed the Supreme
Court’s judgment in issue and returned the case to the latter.
Subsequently, similar views and conclusions were
reached in other judgments of the Constitutional Court (III. ÚS
212/2010, III. ÚS 185/2010 or I. ÚS 407/2010).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicants complained that the domestic
courts had failed to address all their arguments and had dismissed their claim arbitrarily,
in disregard of the practice in other similar cases. They alleged a breach of
Article 6 § 1 of the Convention, which in its relevant part reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicants maintained that their right to a
fair hearing by a tribunal had been breached. Domestic courts’ practice on
the point in issue had varied, and the Supreme Court had granted similar claims
in different proceedings. Such situation was contrary to the principle of legal
certainty.
The Government admitted that the practice of
domestic courts on the point in issue had varied at the relevant time. However,
the view had prevailed that land expropriated under Ordinance 15/1959 could not
be restored under Law no. 503/2003. The two judgments to the contrary on
which the applicants relied were exceptional at that time.
A change in the practice, including that of the Constitutional Court, was introduced by judgments of that court delivered after mid-2010. That
change was to be considered the result of the gradual development of the
case-law and elimination of lacunae in the relevant law, the provisions of which
did not explicitly refer to cases where property had been taken under Ordinance
15/1959.
The Government concluded that in the applicants’
case the principle of legal certainty had not been breached, as their claim for
restitution had been dismissed in accordance with the practice prevailing at
the relevant time.
The Court reiterates that it is not its role to
question the interpretation of domestic law by the national courts. Similarly,
it is not in principle its function to compare different decisions of national
courts, even if given in apparently similar proceedings; it must respect the
independence of those courts (see Nejdet Şahin and Perihan Şahin
v. Turkey [GC], no. 13279/05, §§ 49-50, 20
October 2011, and the other authorities cited therein). However, profound
and long-standing variations in the practice of the highest domestic court may
in itself be contrary to the principle of legal certainty, a principle which is
implied in the Convention and which constitutes one of the basic elements of
the rule of law (see Beian v. Romania (no. 1), no. 30658/05,
§§ 37-39, ECHR 2007-V (extracts)).
The Court further reiterates that Article 6 § 1
of the Convention obliges the courts to give reasons for their judgments, but
cannot be understood as requiring a detailed answer to every argument. The
extent to which this duty to give reasons applies may vary according to the
nature of the decision (see Ruiz Torija v. Spain, 9 December 1994, § 29,
Series A no. 303-A).
In the present case it is not disputed between
the parties that at the relevant time the Supreme Court delivered judgments in
which it expressed contradictory views on similar cases, namely as regards the
restitution of property under Law no. 503/2003, where such property had been
expropriated under Ordinance 15/1959.
In their constitutional complaint the applicants
pointed to that fact with reference to the Supreme Court’s judgment 3SžoKS 130/2005 of 9 June 2006. In its decision of 25 October
2007 the Constitutional Court dismissed their complaint without addressing that
argument.
However, in its judgment on a different case
delivered subsequently, the Constitutional Court found, with reference to the Supreme
Court judgments 3SžoKS 130/2005 of 9 June 2006 and 6 Sžo 240/2008 of 14 October 2009, that variations in practice
on the part of the Supreme Court when determining whether expropriation of land
under Ordinance 15/1959 fell under Law no. 503/2003 ran contrary to the
principle of legal certainty.
Although it has not been the role of the Constitutional Court to review the case-law of the Supreme Court as such, a constitutional
complaint provided, as shown by judgment IV. ÚS 209/2010 of 16 September
2010, a means for overcoming the adverse effects on a person’s
constitutional rights which inconsistency in Supreme Court practice could exert.
The Court has noted that the conclusion which
the Constitutional Court reached in judgment IV. ÚS 209/2010 was
based on the same argument on which the applicants in the present case had
relied in their constitutional complaint. By failing to address the applicants’
argument about inconsistency in the Supreme Court’s practice, which constituted
a substantial element of the case before it, the Constitutional Court
acted contrary to the applicants’ right to a fair hearing as guaranteed by
Article 6 § 1.
In view of the above conclusion, the Court
considers that it is not required to examine whether there has also been a
breach of that provision on account of the conflicting decisions of the Supreme
Court on the matter in issue.
There has accordingly been a violation of
Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.
1
The applicants complained that the real property
in issue had not been restored to them. 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.”
The Government contested that argument.
The Court reiterates that Article 1 of Protocol
No. 1 does not guarantee the right to acquire property, and that an applicant
can allege a violation of Article 1 of Protocol No. 1 only in so far as
the impugned decisions related to his or her “possessions” within the meaning
of this provision. “Possessions” can be either “existing possessions” or
assets, including claims, in respect of which the applicant can argue that he
or she has at least a “legitimate expectation” of obtaining effective enjoyment
of a property right (for a recapitulation of the relevant principles and
further references see, for example, Kopecký v. Slovakia [GC], no.
44912/98, § 35, ECHR 2004-IX).
In the present case the applicants claimed restitution
of real property which had been expropriated prior to the entry into force of
the Convention in respect of Slovakia. Deprivation of ownership or of another
right in rem is in principle an instantaneous act and does not produce a
continuing situation of “deprivation of a right” (see Malhous v. the Czech
Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII, with further
references).
The domestic authorities dismissed the
applicants’ claim as falling outside the relevant law. Due to its subsidiary
role in the protection of human rights the Court cannot speculate as to whether
the applicants met all statutory requirements for restitution of the property
and whether the property would be liable to restitution had the proceedings
concerning their claim been in compliance with Article 6 of the Convention. In
these circumstances, the Court does not find it established that the contested
decision related to the applicant’s “possessions” within the meaning of Article
1 of Protocol No. 1.
It follows that this complaint is incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 35 § 3 (a) and must be rejected in accordance with Article
35 § 4.
III. 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
The applicants claimed 6,000 euros (EUR) in
respect of pecuniary damage. That sum comprised EUR 3,000 corresponding to the
value of the land and EUR 3,000 corresponding to the rent for which the land
could have been leased sine 1992.
The Government contested that claim.
Noting that in the present case an award of just
satisfaction can only be based on the fact that the applicants did not have the
benefit of the a fair hearing as guaranteed by Article 6 § 1 of the Convention,
the Court considers that it cannot speculate as to the outcome of the
proceedings had the position been otherwise. Accordingly, any causal link
between the violation found and the pecuniary damage alleged has not been
established and the applicants’ claim in that respect has to be dismissed.
The Court further notes that the applicants
submitted no claim in respect of non-pecuniary damage.
B. Costs and expenses
The applicants also claimed EUR 393.14 for costs
and expenses incurred before the domestic authorities and the Court.
The Government asked the Court to determine the
claim in accordance with its practice.
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. Having regard to the documents in its possession and
the above criteria, the Court considers it reasonable to award the applicants
jointly the sum of EUR 350 covering costs under all heads.
C. Default interest rate
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaint concerning the
alleged breach of Article 6 § 1 admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicants
jointly, within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 350 (three
hundred and fifty euros) plus any tax that may be chargeable to the applicants,
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
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 26 March 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep Casadevall
Registrar President
Appendix
List of applicants
Mr Martin Vrabec, born in 1940 and residing in Poltár
Ms Elena Račková, born in 1936 and
residing in Poltár
Ms Ľubica Vrabcová, born in 1948 and
residing in Bratislava
Ms Ľubica Kolesárová, born in 1977 and
residing in Poltár
Mr Ján Vrabec, born in 1982 and residing in
Poltár
