CASE OF SILÁŠOVÁ AND OTHERS v. SLOVAKIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicants all live in Žilina, except for Mr Kyška, Mr P. Lalinský and Ms Vestfálová, who live in Turie, Bytča and Nemecká nad Hronom respectively. 6. The facts of the case are structurally similar to those obtaining in the cases against Slovakia of Urbárska Obec Trenčianske Biskupice (no. 74258/01, 27 November 2007 (merits) and 27 January 2009 (just satisfaction)), Jenisová (no. 58764/00, 3 November 2009), Šefčíková (no. 6284/02, 3 November 2009), and Salus (no. 28697/03, 3 November 2009). 7. The applicants are the owners of land situated in the cadastral area of Závodie on the territory of the municipality of Žilina. They acquired title to this land by way of inheritance from their predecessors. 8. In 1948 the State put the land in question at the disposal of an agricultural cooperative called Mier Žilina-Bánová. In 1987 the cooperative designated part of the land as an “allotment colony”, consisting of individual allotments which were put at the disposal of private third parties (“the gardeners”). 9. The applicants’ ‒ or, at the relevant time, their predecessors’ ‒ formal title to the land has remained unaffected but in practice, they have not been able to make use of it at all. The size of each of the applicants’ individual parcels of land thereby affected is listed in column C of the appendix. 10. In the context of the political changes in the former Czechoslovakia, the Land Ownership Act (Law 229/1991 Coll.) was enacted in 1991. Under section 22(2) thereof, in the absence of any agreement to the contrary with the applicants, the gardeners acquired a tenancy right in respect of the land in question with effect from the date of the Act’s entry into force. 11. The rent payable for such tenancy was regulated under section 22(3) of the Land Ownership Act until this provision was replaced by the Allotments Act, which entered into force on 26 March 1997. 12. The Allotments Act likewise imposed a compulsory tenancy arrangement in favour of the gardeners, the rent being regulated by its section 4, which applied by operation of law unless the parties had agreed otherwise. This provision, as applicable at that time, referred to other pieces of legislation which set the annual rent at ten per cent of the value of the property ‒ calculated on the basis of the then applicable price regulations ‒ the minimum being equivalent to 0.01 Euro (EUR) per square metre and per year. 13. In the applicants’ case, with the exception mentioned below, no such separate agreement had been reached between the parties, and the annual rent payable by the gardeners to the applicants was thus determined under the statutory rules at the lowest limit of the applicable scale, that is to say at a rate of EUR 0.01 per square metre. In the case of the applicant Ms L. Kothajová, an agreement was reached that, as from 2004, she would be paid rent equivalent to EUR 0.01168 per square metre and per year. 14. The applicable statutory regime was amended ‒ after the Court’s above-mentioned judgments had become final ‒ with effect from 1 April 2011 by Law no. 57/2011 Coll., which adjusted the rent payable to owners in a situation such as the applicants’ to a level commensurate with the market rent. By virtue of the statutory amendment, the amount of the rent was to be determined under the Regulation of the Ministry of Justice on Determination of the General Value of Property (no. 492/2004 Coll.). This regulation uses the term “general value” ‒ which is understood to mean the expert assessment of the most likely price at a given place and time on the market in conditions of free competition and honest sale ‒ and lays down formulae for the determination thereof in relation to land and the rent payable for that land, the latter being linked to the former. These formulae take into account what is known as the “general situation index” (“the GSI”), ranging originally from 0.70 to 2.00, normally depending on the geographical location of the property. However, prior to the entry into force of the amendments introduced by Law no. 57/2011, Regulation 492/2004 had been amended by Regulation no. 254/2010 Coll., which took effect from 1 July 2010. The latter Regulation introduced a special GSI ranging from 0.50 to 0.70 to be applied when determining the “general value” of land and the “general value” of the rent for the land in allotment colonies. 15. These amendments left the compulsory tenancy introduced by the Allotments Act unaffected. Such a tenancy arrangement remains in place until the completion of what are known as land consolidation proceedings in a given area. Such proceedings are also provided for under the Act, their aim being to have the ownership and use of the land in the allotment area consolidated, principally by transferring title to the land to the gardeners and having the former owners compensated by means regulated under the Act, the details of such consolidation being defined in what is known as a “land consolidation project”. 16. In the applicants’ case, the gardeners initiated the requisite land consolidation proceedings on 7 December 1998. Within the framework thereof, the order had been given for implementation of a “land consolidation project”, but the proceedings changed course on 7 August 2013 when the Constitutional Court held that the applicants’ inability to have that order reviewed by the courts violated their right of access to a court and their property rights. The land consolidation proceedings are currently pending, at a stage where the general value of the applicants’ land remains to be determined. 17. The compulsory tenancy of the applicants’ land persists. 18. The parties disagreed as to the amount of rent payable for the applicants’ property. Their positions and the documents submitted in their support may be summarised as follows. 19. The applicants relied on report no. 05/2010 dated 29 March 2010, in which a sworn expert, A, estimated the general value of the rent in question by reference to the criteria laid down in Regulation no. 492/2004, and applied a GSI of 1.30. On that basis, the applicants considered that the market value of the annual rent amounted to EUR 2.66 per square metre. Later, the applicants also submitted report no. 169/13 dated 5 November 2013 by another sworn expert, B, according to which the general value of monthly rent for a plot in the stated area belonging to the applicant Mr Leščinský was EUR 0.773 in 2013, EUR 0.782 in 2012, EUR 0.789 in 2011 and EUR 0.752 in 2010. These figures had been estimated on the basis of Regulation no. 492/2004, taking into account the GSI resulting from the amendments introduced by Regulation no. 254/2010. 20. The Government for their part submitted the following documents: ‒ A letter from the Forensic Engineering Institute in Žilina dated 17 December 2012, in which the Institute pointed out what they considered to be methodological flaws in the calculations of expert A. On the basis of their pro forma recalculation of the available data, the value of the annual general rent would be EUR 0.239 per square metre. However, the letter points out that this recalculation was done without a separate in situ investigation and without the examination of further documents that the Institute considered essential. ‒ A letter from the Slovak Real Estate Fund dated 24 April 2013 stating that, at that time, expert valuations of the general value of the land had been obtained for fourteen allotment colonies in the district of Žilina. On the basis of the general value of the land as established in these valuations, which took into account legislative amendment no. 57/2011, the Government contended that the average general value of the annual rent payable for land comparable to the applicants’ was EUR 0.38. ‒ A full expert report drawn up by the Institute in 2014, numbered 86/2014, which had been preceded by the Institute’s own investigations. In this report, drawn up on the basis of amended Regulation no. 492/2004, the Institute calculated the general value of the annual rent payable for the property in question as of 31 March 2014 as EUR 0.718 per square metre. The method provided by Regulation no. 492/2004 could not be used in relation to the preceding periods. In these cases, the Institute assessed the general value of the annual rent for previous years ‒ on the basis of the results for the year 2014, but taking into account the general development of real estate prices in the given region and other economic criteria during those years ‒ as follows: in 2013 EUR 0.716, in 2012 EUR 0.746, in 2011 EUR 0.732, in 2010 EUR 0.745, in 2009 EUR 0.790, in 2008 EUR 1.084, and in 2007 EUR 0.804. Lastly, the Institute reiterated the objections concerning the methodology used in the valuation produced by expert A and expressed the view that he had lacked the requisite qualifications for conducting the particular type of valuation obtaining in the present case, since his qualifications pertained only to agricultural land, and did not extend to include the type of land concerned in the present case.