PETROVÁ AND VALO v. SLOVAKIA
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicants, Ms Zuzana Petrová and Mr Ondrej Valo, are Slovak nationals who were born in 1971 and 1967 respectively and live in Košice. They were represented before the Court by Mr I. Šafranko, a lawyer practising in Svidník. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants’ grandmother owned a piece of land situated in a regional capital. In the Land Registry that land is recorded on two separate Certificates of Ownership relating to a number of plots occupying a total surface area of 7,682 square metres. The plots recorded in one of these Certificates are classified as arable land and garden whereas the land recorded in the other Certificate, having a surface area of 94 square metres, is classified as land in a built-up area. 5. This piece of land resembles a strip bordered on both sides by plots on which neighbours have their houses. According to the Government, this piece of land used to be on the outskirts of town but because of the growth of the town its built-up areas have reached this property. 6. In the 1950s or 1960s, when the land in question was de facto occupied by a socialist agricultural co-operative, three high-voltage pylons were erected on it, subject to the provisions of the 1957 Electrification Act (Law no. 79/57 Coll.). The pylons themselves cover some 2 square metres of the surface of the land in question, but the protective zone around them covers an area of 6,144 square metres. 7. The applicant’s grandmother was neither invited to take part in nor informed of the administrative proceedings concerning the construction of the electricity main of which the pylons were a part. She did not receive any compensation. Nevertheless, no decision appears to have been taken depriving her of the title to the land. 8. From 1998 the applicants’ grandmother, and later also the applicants, made a large number of applications to various courts, public bodies, members of parliament and other officials with a view to obtaining compensation in respect of the restrictions resulting from the erection and continued presence of the pylons on the land in question. 9. Meanwhile, in 2002 the applicants became the owners of the land by way of a gift from their grandmother, who then passed away in 2005. 10. As the owners, from 2005 the applicants became liable to pay realestate tax on the land. In 2012 the amount of tax payable in respect of the land as a whole was 70.23 euros (EUR), of which EUR 8.07 related to the proportion of the surface taken up by the pylons. As the owners, the applicants became liable to maintain the land so that the use of the adjacent plots was not hindered. 11. In the applicants’ submission, with the installations on it, their land can neither be sold nor made use of for construction. Nevertheless, in 2012, the applicants sold the plot classified as being in a built-up area (see paragraph 4 above) to another individual. 12. As submitted by the Government, and acknowledged by the applicants, the remainder of the land can be used for farming, and it is used as a garden for growing fruit trees and vegetables. 13. On 5 February 2003 the applicants brought and later amended an action eventually directed against the local electricity-distribution company and aimed at obtaining an amount of money in compensation for the use of the surface occupied by the pylons. The defendant of the action is a joint-stock company and, as such, one of its statutory purposes is to generate profit. It has been submitted by the applicants, and not contested by the Government, that the defendant is owned by another company, of which the State owns 51% of the stock. As to the substance, for each square metre occupied by the pylons, the applicants claimed the equivalent of approximately EUR 1.20 per year. In support of their claim, the applicants relied, inter alia, on Articles 6 § 1 of the Convention and 1 of Protocol No. 1, arguing that while the impugned pylons served to make a profit for the defendant, the applicants not only had to endure the presence of the pylons but were also incurring costs related to the plot’s maintenance. 14. The action was examined and dismissed at two levels of ordinary jurisdiction: by the Košice I District Court (Okresný súd) on 13 December 2007 and, following an appeal by the applicant, by the Košice Regional Court (Krajský súd) on 11 December 2008. 15. The courts applied section 22(2) of the 1957 Electrification Act, which was still in force by virtue of section 42(2) of the 1998 Energy Act (Law no. 70/1998 Coll.) and section 69(10) of the 2004 Energy Act (Law no. 656/2004 Coll.). Their reasons may be summarised as follows: The 1957 Electrification Act authorised the construction of electricity mains, including the establishment of support points, such as the pylons on the applicants’ land, on the real property of any party. As a matter of principle, no compensation was envisaged. However, if the owners or users of the real property concerned were significantly encumbered in its use they could claim adequate one-off compensation. A claim for such one-off compensation had to be filed within three months of the entry into use of the installation or else it would lapse. The applicable legislation provided for an ex lege easement, which was a sui generis notion within public law. It was accordingly not possible to advance a compensation claim on the basis of private law. The easement in question was always to be governed by the legal rules applicable at the time of its creation. The subsequent legislation did not envisage any compensation other than the one-off compensation under the 1957 Electrification Act. In support of this position, the courts also relied on a decision of the Constitutional Court (Ústavný súd) of 28 September 2005 (see paragraph 34 below). In the applicants’ case, at the relevant time no compensation had been claimed or, consequently, obtained. The claim of the applicants’ grandmother had thus lapsed, there had not been any legal basis for its renewal, and there was no basis for any new claim of the applicants’ own. The courts equally held that the right to a fair trial did not imply the right to a successful outcome in the proceedings; that the ex lege easement served the public interest and that it did not infringe on the applicants’ property rights. 16. On 9 March 2009 the applicants lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). They advanced similar arguments to those outlined above and alleged a violation of their rights under Article 1 of Protocol No. 1. In addition, the applicants submitted that they accepted the public interest in having the installation and that the essential problem was the complete lack of any compensation, which they considered disproportionate. In particular, the ordinary courts had failed to respond to their argument that their grandmother could not have claimed any compensation at the time of the creation of the easement because she had de facto not been using it and compensation could only be claimed by someone who had been significantly encumbered in the use of their property. The applicants further relied on the judgments (nález) of the Constitutional Court (Ústavní soud) of the Czech Republic – Slovakia having a similar legal tradition – in cases nos. Pl. ÚS 25/04, of 25 January 2005, and I. ÚS 137/03 of 18 November 2003. These judgments concerned, inter alia, the continued application of the compensation regime set up under the 1957 Electrification Act. In these judgments, an ideological distinction was observed between the “old law”, that is to say, that of the “old (communist) regime” prior to November 1989, and the law applicable under the subsequent democratic constitution. This distinction reflected the political and economic changes that had taken place. The quoted judgments recognised that, while there was a general continuity with the old law, there was a discontinuity in respect of the values of the old regime. The interpretation and application of the old rules had thus currently to take due account of the need for the protection of human rights and fundamental freedoms, including the protection of property. The latter consideration was all the more relevant when the beneficiary of an ex lege easement was making use of it in order to obtain economic gain. While the lawfulness of the creation of an ex lege easement as such was undisputed, where the applicable public-law legislation contained no provision for compensation in respect of expenses relating to the exercise of the easement, the relevant provisions of private law were to be used as an alternative. Such provisions provided for compensation in respect of running costs, which was to be agreed on by those concerned or to be ordered by a court. A lack of compensation for such expenses would constitute unjust enrichment on the part of the beneficiary of the easement. 17. On 14 May 2009 the Constitutional Court declared the applicants’ complaint inadmissible as being manifestly ill-founded. It reiterated its established case-law to the effect that a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure. However, no such procedural claim had been advanced and, in any event, no procedural issue had been established. The ordinary courts’ judgments were supported by adequate reasoning and their conclusions as to the facts and law manifested no signs of arbitrariness or lack of justification. 18. The Charter (Constitutional Law no. 23/1991 Coll.) was introduced into the legal order by way of a constitutional law which was enacted by the Federal Assembly of the Czech and Slovak Federal Republic on 9 January 1991 and which entered into force on 8 February 1991. The law remains in force in Slovakia today. 19. The relevant part of Article 11 provides: “1. Everyone has the right to own property. Each owner’s property right shall have the same content and enjoy the same protection. [The right of] inheritance is guaranteed. 2. The law shall designate the property necessary for securing the needs of society as a whole, the development of the national economy, and public welfare, which may be owned exclusively by the State, a municipality, or by designated legal persons; the law may also provide that certain items of property may be owned exclusively by citizens or legal persons with their headquarters in the Czech and Slovak Federal Republic. 3. Ownership entails obligations. It may not be misused to the detriment of the rights of others or in conflict with legally protected public interests. It may not be exercised so as to cause harm to health, nature, or the environment beyond the limits laid down by law. 4. Expropriation or some other mandatory limitation upon property rights is permitted in the public interest, on the basis of law, and for compensation.” 20. The relevant part of Article 20 provides: “1. Everyone shall have the right to own property. The property rights of all owners shall be uniformly construed and equally protected by law. The right of inheritance is guaranteed. ... 4. Expropriation or restrictions to the right of property may be imposed only to the extent necessary and in the public interest, in accordance with the law and for adequate compensation.” 21. Article 3 § 1: “The exercise of rights and fulfilment of duties under civil law must not interfere with the rights or legally protected interests of others without a lawful ground and may not be contra bonos mores.” 22. Article 123: “The owner shall be entitled, within the limits prescribed by law, to hold the object of his ownership, to use it, to benefit from its fruits and proceeds and to make dispositions in respect of it.” 23. Article 124: “All owners shall have the same rights and duties and shall be granted the same legal protection.” 24. Article 128: “1. The owner of a thing must endure the use of his thing [by another person] in a state of emergency or in a pressing public interest, for the necessary time, to the necessary extent, and in return for compensation, if the purpose cannot be achieved otherwise. 2. In the public interest, ... the ownership of [a thing] may be restricted if the purpose cannot be achieved otherwise, provided that the expropriation or restriction has a basis in law, and only for that purpose and for compensation.” 25. Article 151n et seq. provides basic rules in relation to easements: “1. Easements shall constitute a restriction on the owner of real property for the benefit of someone else, so that the owner must endure, refrain from doing or do something. The rights constituting an easement shall be linked to and originate from the ownership of particular real property or be linked to and belong to a particular person. 2. Easements linked to and originating from the ownership of real property shall pass to the acquirer together with the acquisition of the ownership of the property. 3. Unless the participants agree otherwise, the person who is entitled to use somebody else’s thing on the basis of a right constituting an easement must bear an adequate share of the costs of its maintenance and repair; however, if the thing is co-used by its owner, the owner must bear these costs in proportion to the extent of the joint use.” 26. The relevant part of Article 151o § 1 provides: “Easements can arise on the basis of a written contract, on the basis of a will, in connection with the outcome of inheritance proceedings, on the basis of an approved agreement among the heirs, on the basis of a decision by the competent authority, or by operation of law.” 27. Under section 22(1) of the 1957 Electrification Act, an enterprise active in the energy sector was entitled: (a) to build and operate electrical installations on other persons’ real property to the extent permitted under the building permit, to erect support pylons, to connect the plots by conductors and to establish the electricity main on them; (b) to access the real property directly concerned for the purposes of the construction, operation, maintenance, and modification or removal of the main; and (c) to remove or prune trees obstructing the main. 28. Subject to section 22(2), the exercise of the entitlements pursuant to section 22(1) was subject to no compensation. However, if the owners or users of real property not belonging to the (socialist) State were significantly encumbered in the use of the property because of the establishment of the main, they could a claim with the construction authority for the company concerned to pay them adequate one-off compensation. The claim was to be submitted within three months of the entry of the installation into permanent use on the pain of expiry. 29. The 1957 Electrification Act was abolished and replaced on 1 July 1998 by the 1998 Energy Act, which in turn was abolished and replaced as of 1 January 2005 by the 2004 Energy Act, which in its turn was eventually abolished and replaced on 1 September 2012 by the 2012 Energy Act (Law no. 251/2012 Coll.). Under all the Acts, however, entitlements in respect of other persons’ real property, and limitations on the use of it, which had been established previously remained intact. 30. Section 10 of the 2004 Energy Act, as applicable at the relevant time, provides for a number of safeguards and guarantees to the owners of real property affected by industrial activities in the energy sector, including: - rules on elimination and limitation to the minimum possible of any interference, restrictions, expenses and losses on the part of the owners due to activities of holders of licences to carry out business in the energy sector; - regulation of access to the real property affected; - regulation of measures to be taken and compensation for expenses incurred in connection with such measures in respect of vegetation undermining the security or reliability of the operation of energy facilities; - rules on one-off compensation payable to the owners if they are restricted in the ordinary use of their real property; and - rules on one-off compensation for the creation of an easement in rem on the property concerned, such easement consisting of the duties and restrictions imposed under section 10 of the 2004 Energy Act. 31. Similar provisions to those referred to in the precedent paragraph are contained in the 2012 Energy Act. The easements in question are to be registered with the Land Registry and the licence holder is to inform the owner of the real property concerned of the registration in writing (section 11(10) and (12) of the 2012 Energy Act). 32. By way of an action in the Prešov District Court (case no. 9C 207/00), an individual sued a municipality and a public-transport company of that municipality for compensation in connection with electrical installations situated on his real property and used by the defendants in operating the public transport system. For unclear reasons the applicants were third parties to the proceedings. 33. In the context of those proceedings, the Court of Appeal challenged before the Constitutional Court the constitutionality of section 42(2) of the 1957 Electrification Act, applicable by virtue of section 69(10) of the 2004 Energy Act, which had replaced the 1998 Energy Act. 34. On 28 September 2005 the Constitutional Court dismissed the challenge (case no. PL. ÚS 28/05) holding that the impugned statutory provisions merely concerned the continued existence of ex lege easements and provided for no new possibility to claim compensation. Providing for new compensation claims would amount to enabling new restitution claims, which the lawmaker was free under the Constitution to choose not to do.