CASE OF ZBOROVSKÝ v. SLOVAKIA
Preliminary objection partially joined to merits and dismissed (Article 35-3-b - No significant disadvantage);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Constitutional proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
5. The applicants are brothers. They were born in 1954 and 1956 and live in Neratovice (the Czech Republic) and Prešov (Slovakia) respectively. 6. The applicants’ father owned a piece of real estate located in the centre of the city of Prešov, which comprised a plot of land and buildings standing on it. 7. On their father’s death in 1964, the applicants each inherited half of that estate. 8. The estate was subsequently seized by a State-owned enterprise and some of the buildings were torn down and new ones built. The new buildings included a garage. 9. In the early 1990s the State-owned enterprise was privatised and transformed into a joint stock company. 10. In 1992 the applicants brought an action for removal of the garage and vacant possession of their land. This action and its outcome is the main subject matter of the present application. The details are given below. 11. In 2004 title to a portion of the real estate, which included the garage, was transferred from the joint-stock company to three individuals. Consequently, the action of 1992 was redirected against them. 12. In 2005 the applicants brought another action seeking a judicial ruling declaring them to be the owners of the plot on which the garage was situated and of an adjacent plot. The action was directed against the three beneficiaries of the transfer of 2004 (see previous paragraph). 13. On 27 September 2006, following a hearing held on the same day, at which the defendants acknowledged the applicants’ title, the Prešov District Court (Okresný súd) allowed the action of 2005. 14. On 15 November 2006, on the basis of the ruling of 27 September 2006, the applicants and the defendants settled their differences by exchanging title to the garage for title to the adjacent plot, under the judgment mentioned above, and by setting off their mutual financial claims, including those under the judgments mentioned below. 15. On 27 February 1992 the applicants lodged an action with the District Court seeking a judicial order for removal of the garage and vacant possession of their land. 16. The District Court ruled on the action on 13 December 1995 and 18 November 1997. These judgments were quashed on appeal (odvolanie) and the action was remitted by the Košice Regional Court (Krajský súd) on 16 April 1997 and the Prešov Regional Court on 22 November 1998 respectively. 17. On 30 September 2005 the District Court ruled on the action anew. It relied on the above-mentioned decision of the Prešov Regional Court of 22 November 1998 in acknowledging that the applicants were the owners of the land on which the garage stood and that the garage had been constructed on that land without the consent of its owners. The garage was therefore considered an “unlawful construction”. It was not practicable (účelné) to remove the garage or to have the applicants take over title to it. The situation had to be resolved under Article 135c § 3 of the Civil Code by establishing an easement for the benefit of the owners of the garage and by ordering that they pay the applicants compensation in an amount equivalent to some 3,050 euros (EUR). The amount of compensation was determined on the basis of an expert assessment with reference to existing prices as opposed to future prices. 18. On 11 April 2006 the Prešov Regional Court upheld the judgment of 30 September 2005 following appeals by both the applicants and the defendants. The Regional Court fully endorsed the reasoning provided by the District Court, referred to previous judicial practice and held that in matters such as that at hand the courts were not bound to follow the parties’ specific requests, but rather had to resolve the matter within the parameters set by statute. 19. On 6 June 2006 the applicants challenged the judgment of 11 April 2006 by way of an appeal on points of law (dovolanie). They relied on Article 237 (e) of the Code of Civil Procedure (“CCP”) and argued that the courts had wrongfully ruled on their action ultra petitum. In particular, the applicants argued that in litigious matters such as theirs the courts were bound by the plaintiffs’ formulation of the claims. The applicants had been seeking a ruling for removal of the garage or alternatively to have them established as the owners of the garage. However, the courts had made a ruling establishing an easement, which had not been sought. In addition, the applicants argued that the lower courts had failed to hear and examine all the evidence they had adduced. 20. On 25 January 2007 the Supreme Court (Najvyšší súd) declared the appeal on points of law inadmissible. It upheld the Regional Court’s view that when dealing with “unlawful constructions” the courts were not bound by the specific requests made by the parties to the proceedings. A specific request for the situation to be resolved by way of establishing an easement had therefore not been required. The applicants did not have a right as such to have all evidence they adduced examined and taken into account. The appeal was thus not admissible on the ground identified by the applicants and neither was it admissible on any other ground envisaged by law. 21. On 17 March 2005, following a complaint by the applicants under Article 127 of the Constitution, the Constitutional Court (Ústavný súd) found that the District Court had violated their right to a hearing within a reasonable time and ordered that the District Court proceed with the case without delay. It awarded each applicant the equivalent of some EUR 515 in just satisfaction in respect of non-pecuniary damage. 22. On 6 June 2006 the applicants lodged a new constitutional complaint. They contested delays in the proceedings subsequent to the Constitutional Court’s judgment of 17 March 2005 and challenged the judgments of the District Court of 30 September 2005 and the Prešov Regional Court of 11 April 2006 as having treated them unequally. 23. On 4 January 2007 the Constitutional Court declared the complaint inadmissible. It discerned no unjustified delays in the proceedings and rejected the relevant part of the application as manifestly ill-founded. The Constitutional Court held that an appeal on points of law was a remedy that was available to the applicants, and observed that they had in fact used it (see paragraph 19 above). As it was still pending, that part of their constitutional complaint was premature. 24. On 19 April 2007 the applicants lodged a fresh constitutional complaint. They relied, inter alia, on Articles 6 § 1, 13 and 14 of the Convention and 1 of Protocol No. 1 and challenged the rulings of the Supreme Court of 25 January 2007 (see paragraph 20 above), the Prešov Regional Court of 11 April 2006 (see paragraph 18 above) and the District Court of 30 September 2005 (see paragraph 17 above) arguing that these rulings were incompatible with their property rights, of which they had failed to obtain protection. 25. On 24 May 2007 the Constitutional Court declared the complaint inadmissible. It found that the complaint had been lodged outside the statutory two-month time-limit in so far as it concerned the rulings of the Prešov Regional Court of 11 April 2006 and the District Court of 30 September 2005. 26. The complaint in respect of the decision of the Supreme Court of 25 January 2007 was manifestly ill-founded because that decision was not vitiated by any constitutionally relevant unlawfulness, arbitrariness or irregularity. The written version of the Constitutional Court’s decision was served on the applicants’ lawyer on 25 January 2008. 27. The “right to judicial and other legal protection” is laid down in Section (Oddiel) Seven of Part (Hlava) Two, dealing with “basic rights and freedoms”. The relevant part of Article 46 provides as follows: “1. Everyone shall be able to assert his or her rights in a procedure provided for by a statute before an independent and impartial court of law and, in cases defined by a statute, before another organ of the Slovak Republic... 4. Conditions and details of judicial and other legal protection shall be provided for by a statute.” 28. Article 127, subsumed under Section One (dealing with Judicial Power) of Part Seven (dealing with the Constitutional Court), provides: “1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2 If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.” 29. Under section 53(1), a complaint under Article 127 of the Constitution is admissible only where the complainant has used effective remedies provided for by the law to protect his or her fundamental rights. A complaint to the Constitutional Court can be lodged within two months of a decision finally taking effect or from the date of a contested measure or notification of another interference with a person’s rights (section 53(2)). 30. The settlement of matters related to “unlawful constructions” is regulated by Article 135c, which provides that – if a construction is erected on a surface belonging to someone else, the removal of the construction at the expense of its owner may be ordered by a court upon application for this remedy by the owner of the surface (paragraph 1). If however the removal of the construction does not prove practicable, and subject to consent by the owner of the surface, the court establishes the owner of the surface to be the owner of the construction, in return for the payment of compensation (paragraph 2). The court also has the power to settle the relations between the owner of the surface and the owner of the construction differently, in particular by establishing an easement to enable the exercise of the ownership right in respect of the construction. 31. The relevant provisions concerning appeals on points of law are laid down in Articles 236 et seq. They are summarised, for example, in the Court’s judgment in the case of Ringier Axel Springer Slovakia v. Slovakia (no. 41262/05, §§ 61-68, 26 July 2011). 32. In case no. III. ÚS 114/2010 the complainant alleged a violation of his procedural rights and property rights by virtue of judicial decisions at first instance and on appeal. In parallel to his constitutional complaint he lodged an appeal on points of law relying on Article 237 (f) of the CCP. 33. On 23 March 2010 the Constitutional Court declared the complaint inadmissible. It found that since the complainant had asserted his rights by way of an appeal on points of law, and since that appeal was still pending, the principle of subsidiarity enshrined in Article 127 § 1 of the Constitution and section 53(1) of the Constitutional Court Act precluded a parallel examination of the same subject matter by the Constitutional Court. 34. At the same time, however, the Constitutional Court made a pronouncement concerning the application of the statutory two-month time-limit for lodging a fresh constitutional complaint in the eventuality of a rejection of the complainant’s appeal by the Supreme Court. In that respect, “bearing in mind the purpose of the fundamental right to judicial protection under Article 46 § 1 of the Constitution”, and making a specific reference to the Court’s judgment in the case of Zvolský and Zvolská v. the Czech Republic (no. 46129/99, §§ 51, 53 and 54, ECHR 2002IX), the Constitutional Court held that, in addition to the decision of the court of cassation, the time-limit would be considered as having been respected also in respect of the previous decision of the court of appeal. 35. This line of reasoning was upheld by the Constitutional Court in its decision of 27 September 2011 in case no. III. ÚS 407/2011, with reference to the principle of “substantive protection of constitutionality”.