BAŠISTOVÁ AND OTHERS v. SLOVAKIA
Inadmissible
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. A list of the thirty-two applicants, who are all Slovak nationals, is set out in the appendix (“the applicants”). 2. The applicants were represented before the Court by Mr M. Hrouda, a lawyer practising in Košice. 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. This application and three others (nos. 42812/10, 48554/10 and 44019/11) concern the regularisation of the relationship between ownership and use of real property located in the cadastral area of Košice-Sever. 5. Certain land in this area was expropriated in the 1980s by the (then socialist) State and a public sports centre was built on it. The sports centre comprises buildings and various other facilities, such as a tennis court, a grandstand, a water station and paved areas. 6. After the post 1989 political, constitutional and legal changes, litigation took place with a view to resolving various property claims made by the original owners (or their legal successors) against the entities that owned or operated the sports centre or various parts of it. 7. The land concerned is divided into a number of plots with various owners, many of whom are linked by family relations and history, and who had the same legal representation in the above-mentioned proceedings. Their lawsuits followed a similar pattern, but sometimes had varying results. They included the following proceedings. 8. The applicants in the present case are all successors in title to a plot of land in the above-mentioned area. They inherited their title from the original owner, who died in 1958. 9. On 3 October 1994 the applicants or, as the case might have been, their legal predecessors, represented then and throughout the proceedings by a laywer, lodged an action against the owner of a sports club seeking to obtain a court order for the removal of the constructions on the land. 10. The principal line of argument was that the expropriation decision of 24 February 1984 was invalid in law. The applicants were therefore the lawful owners of the land in question, in particular plot no. 10624 (recorded on sheet no. 1630 of the “old” records), and the defendant had no lawful title to have the constructions on the applicants’ land. 11. The action was subsequently amended to state that, alternatively, the applicants sought a judicial ruling establishing an easement on their land for the benefit of the owner of the sports centre in return for financial compensation payable to the applicants. It was also extended to two more defendants, a municipality and a private company, and to additional plots of land. 12. The action was examined and determined at first instance by the Košice I District Court (Okresný súd). In its judgment (rozsudok) of 24 November 2008, the District Court acknowledged that (i) the expropriation of 1984 was legally ineffective on account of procedural flaws; (ii) the applicants were the owners of the land in question; (iii) the constructions on it had been built without a valid legal title in so far as the land was concerned; and (iv) the applicants were entitled to seek redress under general civil law, that is to say Article 135c of the Civil Code (Law no. 40/1964 Coll., as amended), which was not subject to any statute of limitation, unlike the special legislation on restitution, which contained specific time-limits. 13. As regards the options available under Article 135c of the Civil Code for resolving the discrepancy between the ownership and use of the land and the constructions concerned, the District Court found that, for practical reasons, it was out of the question to have the applicants established as the owners of the constructions and to order them to pay the current owners financial compensation. Furthermore, in the circumstances, it was likewise not practical to order the physical removal of the constructions in question. The establishment of an easement for the benefit of the owners of the constructions in return for compensation payable by them to the applicants was therefore an option. 14. However, in that connection, on the basis of expert evidence, the District Court observed that part of the land concerned lay under a construction that fell within the definition of a “building” in terms of the law, whereas the remainder of the impugned land was not underneath “buildings” under the said definition. 15. However, the District Court held that an easement over land could only be established for the benefit of the owner of a building in terms of civil law. 16. A distinction therefore had to be made between the part of the land that was under buildings, in respect of which the action was granted and an easement for the benefit of the owner of the buildings was established, and the remainder of the land, in respect of which the action was dismissed. At the same time, the District Court transferred the claim for compensation for the easement established by the former ruling to another set of proceedings. 17. The applicants challenged the first-instance judgment by means of an appeal (odvolanie) to the Košice Regional Court (Krajský súd). They argued in particular that the District Court had failed to appreciate that the property in question was a part of a large complex serving a single purpose; that a number of claims had been raised in respect of that property; that the legal nature of those claims was identical to those raised by the applicants, differing only in the technical parameters of the specific plots at stake; and that in its judgment in case no. 15C 251/94, the District Court had established an easement in respect of plots of land comprising the sports centre, without differentiating between plots that had “buildings” on them and those that did not (see paragraphs 23 et seq. below). 18. On 20 April 2009, the Regional Court, sitting in chambers, dismissed the applicants’ appeal and upheld the first-instance judgment. It summarised in detail the written, oral and expert evidence taken and fully endorsed the factual and legal conclusions of the District Court, providing further detailed explanations of the position taken, accompanied by references to the existing judicial practice. It also observed that the applicants could have asserted their property rights by other means, for example by lodging actions aimed at obtaining declaratory rulings and orders for compensation in respect of unjustified enrichment. However, they had not done so and the courts were bound by the legal classification of the claims they had pursued in the present proceedings. Nevertheless, the Regional Court provided no specific answer to the arguments that the buildings and the adjacent facilities belonged to a single integrated complex and that a different conclusion had been reached in case no. 15C 251/94. 19. On 24 June 2009 the applicants, except for the twenty-third applicant, lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 § 1 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). Citing similar grounds to those mentioned above, coupled with the lack of a judicial response to what they considered to be crucial arguments, the applicants complained that the outcome of the proceedings had been arbitrary and alleged that their rights under, inter alia, Article 6 § 1 of the Convention (access, fairness, adequate reasoning) and the constitutional equivalent of Article 1 of Protocol No. 1 had been violated. 20. On 8 September 2009 the Constitutional Court declared the complaint inadmissible as being manifestly ill founded. It observed that it was not a court of further appeal against decisions of the ordinary courts and found no constitutionally relevant unfairness, arbitrariness or irregularity in the impugned judgments. The decision was served on the applicants’ lawyer on 7 October 2009. 21. The position taken by the courts was subsequently fully endorsed by the Public Prosecution Service when it dismissed the applicants’ petition for an extraordinary appeal on points of law to be lodged on their behalf in the present case. 22. Article 135c deals with situations concerning so-called “unlawful constructions”, that is buildings (stavba) constructed on somebody else’s plot of land (pozemok) without an entitlement to do so. At the request of the owner of the land, the court has the power to order the removal of such buildings at the cost of the person who constructed them (paragraph 1). However, if the removal of the building is not practical, and subject to consent by the owner of the land, the court has the power to rule that the title to the building be transferred to the owner of the land in return for compensation (paragraph 2). The court also has the power to regularise the relationship between the owner of the land and the owner of the building by taking other measures, in particular by establishing an easement, which is necessary for the exercise of ownership rights in respect of the building, in return for compensation (paragraph 3). 23. In a case registered at the District Court under file no. 15C 251/94 a different group of claimants raised essentially the same claims as the applicants in respect of other plots of land under the same sports centre, the defendant being the respective municipality. 24. Before the case was resolved on the merits with final effect, the Supreme Court had determined the claimants’ appeal on points of law (dovolanie) (no. 3 Cdo 96/98) against a previous judgment of the Regional Court. In its judgment of 25 February 1999, the Supreme Court observed that before the action could be determined on the merits (of the claim for an easement), preliminary questions had to be answered as to whether the claimants were the owners of the property concerned and, if they were, whether they had standing to sue in the case. The Supreme Court further observed that, when dealing with those questions, the Regional Court had noted that the land in question had been expropriated in 1984. The Regional Court had therefore held that, even assuming that the expropriation had been flawed, it could only have been challenged by means of administrative-law remedies and within the timelimits prescribed for such remedies. That, however, had been beyond the scope of the case at hand and, therefore, the Regional Court held that the 1984 expropriation should be considered as being a matter of fact. 25. The Supreme Court disagreed with the Regional Court’s position described above. As was found in the present case (see paragraph 12 above), it found that the expropriation of 1984 was legally ineffective. As a consequence, the courts were bound to examine the preliminary question of the claimants’ ownership independently and irrespective of the expropriation decision. 26. The case was finally decided on the merits by the District Court on 13 March 2002. The action was granted and an easement was established for the benefit of the claimants in respect of the entire property covered by their claim, that is to say including some plots on which no “buildings”, in the sense explained above, were situated. The judgment was not appealed against and became final and binding on 3 May 2002. 27. The ensuing question concerning the financial compensation payable by the municipality to the claimants for the easement was resolved by the District Court in a judgment of 13 December 2006 (case no. 15C 717/02) on the basis of an expert assessment. 28. In another similar case concerning property in the same area as in the present case, the claimants raised in principle the same claims. The court took the same position as in the present case, that is to say that the claimants were entitled to assert their property claims under the general provisions of the Civil Code and the determinative factor was whether or not the land in question was under “buildings”. As that was not so, the action was dismissed. The respective judgments were given on 11 August 2008 (the District Court) and 2 February 2009 (the Regional Court), and the final decision was given by the Constitutional Court on 18 March 2010. 29. In a number of other cases concerning property in the same area and in a situation similar to the present case, the position was taken that the claimants could not assert their rights under the general provisions of the Civil Code, as those provisions constituted a lex generalis, and their application was excluded by virtue of the special legislation on the restitution of property, as a lex specialis. However, that position does not appear to be settled. 30. The relevant parts of the report state that, in order for the principle of legal certainty – essential for maintaining confidence in the judicial system and the rule of law – to be achieved, the State must make the law easily accessible and must also apply the laws it has enacted in a foreseeable and consistent manner. As the existence of conflicting decisions within the highest courts may be contrary to this principle, it is necessary for these courts to establish mechanisms to avoid conflicts and ensure the coherence of their case-law. 31. The relevant parts of the Opinion read as follows: “47. While recognising the judges’ power to interpret the law, the obligation of the judges to promote legal certainty has also to be remembered. Indeed legal certainty guarantees the predictability of the content and application of the legal rules, thus contributing in ensuring a high quality judicial system. 48. Judges will apply the interpretative principles applicable in both national and international law with this aim in mind. ... In civil law countries, they will be guided by case law, especially that of the highest courts, whose task includes ensuring the uniformity of case law. 49. Judges should in general apply the law consistently. However when a court decides to depart from previous case law, this should be clearly mentioned in its decision.”