CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 12 septembre 2006

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Bonello ,   Mr   M. Pellonpää ,   Mr   K. Traja ,   Mr   L. Garlicki ,   Ms   L. Mijović ,   Mr   J. Šikuta, judges , and   Mrs   F. Elens-Passos , Deputy Section Registrar , Having regard to the above application lodged on 7 September 2001, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The first applicant, Urbárska obec – pozemkové spoločenstvo Trenčianske Biskupice, is a community of land owners. It is a legal person with its registered office in Trenčín. The application was filed on its behalf by its president, Mr K. Rehák. The second applicant, Mr Ján Krátky, is a Slovakian national who was born in 1953 and resides in Trenčín. He is the vice president of the above community of land owners. Before the Court the applicants are represented by Mr J. Drgonec, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) are represented by their Agent, Mrs A. Poláčková. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Background information Under the communist regime in Czechoslovakia owners of land were in most cases obliged to put it at the disposal of State-owned or co-operative agricultural farms. They formally remained owners of the land but had no practical possibility of availing themselves of that property. Some of the land in question was not, for various reasons, cultivated by the farms. It was the State policy to promote the use of such land by individual gardeners. For that purpose garden colonies were established, mainly in the vicinity of agglomerations. Plots of land were put at the disposal of members of the Slovak Union of Gardeners who were allowed to cultivate the land for their individual needs. In the context of Czechoslovakia’s transition to a market-oriented economy following the fall of the communist regime, the Parliament adopted, in 1991, Act 229/1991 (the Land Ownership Act – further details concerning the relevant law and practice are set out below) the purpose of which was to mitigate certain wrongs and to improve the care of agricultural and forest land. Under the Land Ownership Act of 1991 the plots of land on which garden colonies had been established were not to be restored in natura to the original owner where the ownership of the land had passed from the original owners to the State or a legal person. In such cases the original owners were entitled to compensation in kind or in pecuniary form. In this category of cases the legislator gave precedence to legal certainty for the existing users of the property as use of land for gardening was considered to be of greater public interest than restoring the land in natura to its original owners. In the second category of cases, where the original owners including the applicants formally maintained their ownership rights, albeit in name only ( nuda proprietas) , the Land Ownership Act established conditions for the owners to be able to enjoy their property rights to a greater extent. In particular, it provided for the lease of the land by the existing users with a notice period expiring at the date when the temporary right to use the land came to an end. The tenants were however entitled to have the lease extended by 10 years unless a different agreement was reached between the parties. The owners of the respective plots of land were also entitled to request, within 3 years from the coming into effect of the Land Ownership Act, to have their property exchanged for a different plot of land owned by the State. The above approach, permitting the owners to recover full possession of their land after the expiry of 10 years during which the tenants had the right to have the lease extended, was changed with the adoption of Act 64/1997 which took effect on 26 March 1997. According to this law, owners have only a limited possibility of terminating the lease, mainly on the grounds of the tenants’ failure to comply with their obligations. The position of the users of the land has been strengthened in that they are entitled to acquire ownership of the land. As to the owners, Act 64/1997 gives them the right to claim either different land of a comparable surface area and quality or pecuniary compensation. By introducing Act 64/1997 the legislator thus abandoned the philosophy of attaching general priority to the rights of the owners of the plots of land in garden colonies and took the position that it was in the general interest that the rights of persons using the land for gardening purposes should prevail. 2.     Particular circumstances of the applicants’ case A part of the land of the members of the applicant community was used by the garden colony “Váh” in Zlatovce. The applicants submitted that the rent which the gardeners were obliged to pay under the relevant provisions of Act 64/1997 had been lower than the real property tax payable in respect of that land. The first applicant unsuccessfully attempted to recover the possession of the land. For that purpose the community offered to compensate the gardeners for their existing property attached to the land. On 22 July 1998 the members of the garden colony initiated proceedings under Act 64/1997 with a view to having the ownership of the land transferred to the individual gardeners. On 24 September 1999 the Trenčín District Office granted the request, and the Trenčín Regional Office upheld this decision on 24   November   1999. On 6 September 2000 the Trenčín Regional Court dismissed an action which the second applicant and several other persons had lodged against the above administrative decisions. The Regional Court found that the statutory requirements for bringing proceedings under section 7 et seq. of Act 64/1997 had been met. On 30 November 2001 the District Office in Trenčín published the project of consolidation under section 13 of Act 64/1997. The president of the first applicant, the second applicant as well as all land owners whose address was known were notified of the project and informed that the data contained therein could be challenged within 15 days. Members of the garden colony submitted comments, and the project was approved on 11 February 2002. On 4 June 2002 a decision was issued to carry out the project of consolidation. On 6 August 2002 the Regional Office in Trenčín dismissed the appeal filed by the land owners. Subsequently the gardeners paid the sum for the land to the Slovak Land Fund. The first applicant received 1.4097 hectares of different land in compensation on 1 October 2002. On 17 May 2005 the District Land Office in Trenčín, at the Government’s request, issued a document summing up the position as regards the land in issue. According to the document, the garden colony “Váh” in Zlatovce has been situated on a plot of land which, at the time of its establishment, was used as a municipal dump. At that time the land was devastated. The surface of the land which fell under Act 64/1997 amounted to 2.5711 hectares. The surface of the land which the first applicant had received in compensation was smaller as it was arable land of high quality and its value was therefore higher. The document issued by the District Land Office further indicates that in the proceedings under Act 64/1997 the value of the first applicant’s land was taken into account as of the date when the garden colony had been established. The value of the land which the owners received in compensation was also established pursuant to the relevant regulations. In August 2005, at the Government’s request, an expert valued both the land in the garden colony and the land which the first applicant community received in compensation as on 1 October 2002. In his opinion the expert estimated the general value of the land in the garden colony at 1,166.40 Slovak korunas (SKK) per square metre and the value of the other land at SKK 110.16 per square metre. B.     Relevant domestic law and practice 1.     The Land Ownership Act (Act 229/1991) The Land Ownership Act ( Zákon o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku ) entered into force on 24 June 1991. Section 19(1) provides that the purpose of land consolidation within specific areas is to establish integral economic units, in accordance with the needs of individual land owners and with their consent, in compliance with public needs as regards the creation of landscape, environment and investment activities. Paragraph 2 of section 22 provides that, as from the entry into force of the Act and unless a different agreement is reached with the owner, the user of the land shall acquire tenancy rights in its respect. Under section 22(3), as in force until 25 March 1997, in cases where the land was used by individual gardeners in a colony the tenancy could not be terminated before the expiry of the period for which the land had been originally put at the disposal of the users. Unless the parties otherwise agreed, the tenants had the right to have the tenancy extended by another 10 years. The rent and the purchase price in respect of such land were governed by the relevant regulations. The tenants had the right of pre-emption in the event that the owner decided to sell the land. Section 22(4) entitled the owners of land used by gardeners in colonies to request, within 3 years from the entry into force of the Act, to have such land exchanged for a different plot of land owned by the State. The land to be proposed in exchange was required to correspond, as regards both its size and quality, to the original land and it was to be situated, where possible, in the same area. 2.     The Land Consolidation Act (Act 330/91) The Land Consolidation Act ( Zákon o pozemkových úpravách, usporiadaní pozemkového vlastníctva, pozemkových úradoch, pozemkovom fonde a o pozemkových spoločenstvách ) entered into force on 19   August 1991. Section 1 provides that land consolidation consists of the rational arrangement of land ownership in a specific area in accordance with the requirements of the protection of the environment and the creation of territorial systems of ecological stability, the functions of agricultural land and economic and production criteria applicable to modern agriculture and forestry. Under section 2(a), land consolidation pursues the aim, inter alia , of resolving issues and eliminating obstacles related to ownership and possession/occupancy of land which came into being as a result of the historical developments prior to the entry into force of the Act. 3.     Act 64/1997 Act 64/1997 on use of plots of land in garden colonies and arrangements as regards their ownership ( Zákon o užívaní pozemkov v zriadených záhradkových osadách a vyporiadaní vlastníctva k   nim) governs the use of land within garden colonies and the transfer of ownership rights in respect of such land. The governmental explanatory report of 10 December 1996 which was submitted to the Parliament together with the draft Act indicates that some 5,700 hectares of land (approximately 0.22 per cent of all agricultural land in Slovakia) were used by 100,000 individual gardeners in 987 colonies at that time. Gardening served as relaxation and provided a partial supply of fruit and vegetables to at least 700,000 town dwellers in Slovakia. According to the report, there was a public interest in land consolidation in Slovakia. In that context, it was in the general interest to transfer the ownership of land in garden colonies to the existing tenants as it would strengthen the legal certainty of both the gardeners and the owners. As to the tenants, they would obtain ownership of land which they used and would not risk losing the surplus value which they had added to the land by their work and investments. As regards the owners, they were likely to continue to have their rights to avail themselves of the property restricted for a considerable period of time, and the allocation of appropriate alternative plots of land to them would resolve that problem. The view was expressed in the report that compensation based on the surface and quality of land existing at the moment when the owner had lost the possibility of using the land was appropriate. Pecuniary compensation was to be paid in exceptional cases only where the owner either asked for it or refused compensation in natura . Act 64/1997 entered into force on 26 March 1997 and it repealed section   22(3) of the Land Ownership Act of 1991. Section 3(1) of Act 64/1997 provides that users of land in garden colonies acquire the right to lease it as from the entry into force of the Act. Paragraph 2 of section 3 enumerates conditions under which the owner of the land is entitled to terminate the tenancy. Such a termination of tenancy is limited to cases where the tenant (i) is not using the land with due care, (ii) has constructed a building on the plot without authorisation, (iii) has sub-let the land to a third person without the owner’s consent or (iv) has failed to pay the rent, despite a prior warning, by 30 August following the year for which the rent is due. Pursuant to section 4, the yearly rent for the use of such plots of land is to be 10 per cent of their value, as established under Regulation 465/91 of the Ministry of Finance, as amended, which provided for the administrative value of property. Where the owner and user have concluded a lease contract under a special regulation, the provisions of the contract continue to apply (section   5). The main purpose of Act 64/1997 is to permit the transfer of ownership of the land to tenants in colonies where the majority of tenants (provided that they use the majority of land in the colony) so request and where the owners disagree with the transfer. In such cases proceedings are brought in the course of which a preliminary inventory of the land is prepared. The inventory can be challenged within 30 days from its publication. Once the proceedings have started, the competent district office invites the Slovak Land Fund to select State-owned plots of lands which could be offered as compensation to owners of the plots situated in garden colonies (sections 7 and 8). Section 10(1) provides that, prior to approval of the project of land consolidation, the competent district office is to ask the owners to inform it, within 60 days, whether they seek the allocation of a different plot of land of corresponding surface and quality in the same area or financial compensation for their land. Where the colony is situated in a built-up area of a municipality, the owner can claim a different plot of land in a built-up area. Where the owners do not indicate their preference within 60 days, they shall receive financial compensation for their land (section   10(3)). Section 11 governs financial compensation for plots of land situated in garden colonies. It is to be determined on the basis of the quality and nature of the land at the moment when the gardeners’ right to use it was established. It shall equal SKK 3 per square metre where the value under the relevant regulation is below that sum. The law further provides for an increase or decrease in compensation according to the location of the land. Under section 13, the district office shall publish the project of consolidation under the Act and notify the persons concerned thereof. Where no objections are filed, the district office shall approve the consolidation project. Where the persons concerned file objections which the district office does not accept, they shall be examined by the competent regional authority. A decision on approval of the land consolidation project under the Act can be reviewed by a court. Sections 15-17 govern the implementation of the approved projects of land consolidation. Section 17(3) provided that, where the persons using the land did not pay the sum due, the ownership of the land was to be transferred to the Slovak Land Fund. The latter could not use the land but could lease it to the person who used it. This provision was repealed as being contrary to the Constitution (see below). 4.     Practice of the Constitutional Court a)     Finding PL. ÚS 17/00 Thirty-five Members of Parliament and the Prosecutor General brought proceedings before the Constitutional Court claiming that several provisions of Act 64/1997 were contrary to the Constitution and Article 1 of Protocol No. 1. In particular, the Members of Parliament relied on the Court’s case-law ( James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, § 54; Sporrong and Lönnroth v. Sweden , judgment of 23 September 1982, Series A no. 52, §§ 69 and 73) and argued that there existed no genuine public interest for the interference with the land owners’ rights and that the compensation which the land owners were to receive under the relevant provisions of Act 64/1997 was not appropriate Both petitions were jointly examined at a plenary meeting of the Constitutional Court. On 30 May 2001 the Constitutional Court concluded that section 17(3) of Act 64/1997 was contrary to, inter alia , the constitutional protection of ownership rights. It dismissed the remainder of the submissions. The Constitutional Court noted that the regulation of relations in respect of land situated in garden colonies mainly concerned, as in the case of restitution laws, the undoing or mitigation of the wrongs which had occurred in the past when the principle of the rule of law had not been respected. The legislator had a certain margin of appreciation when deciding on the relevant issues provided that the constitutional guarantees were respected. As regards the compulsory lease of the land to the gardeners, under section 3 of Act 64/1997, the Constitutional Court found that it was merely a temporary measure pending the transfer of its ownership to the gardeners in accordance with the provision of that Act. The lease pursued the aim of providing the users with legal certainty and of ensuring an optimal use of the land in question with due regard to the requirements of the landscape and the environment. It was as such in the public interest. The measure was limited in duration and it was not disproportionate as it filled the gap which arose following the quashing of section 22(3) of the Land Ownership Act of 1991. The Constitutional Court concluded that the Parliament, by obliging the owners to lease the land to the gardeners, had not overstepped its margin of appreciation and had struck a fair balance between the general interest and protection of individuals’ rights. Section 3 was therefore not contrary to Article 1 of Protocol No. 1 to the Convention or its constitutional equivalent. As to the argument that rent payable under section 4 of Act 64/1997 was disproportionately low, the Constitutional Court held that Article 1 of Protocol No. 1 imposed on the Contracting Parties to the Convention no specific obligations as regards compensation for use of property in the general interest. There was no appearance that the relevant provision was unconstitutional. Before the Constitutional Court the plaintiffs argued that the transfer of ownership of the land to the gardeners under section 7 et seq. of Act   64/1997 was not in the general interest as it restricted the rights of the owners for the benefit of a different group of individuals without any relevant justification. The Constitutional Court held that the transfer of ownership in question was to be seen in the broader context of land consolidation, the purpose of which was set out in section 19 of the Land Ownership Act of 1991 and in section 2(a) of the Land Consolidation Act of 1991. It pursued the aim of setting up integrated land entities in accordance with the needs of individual owners, with their consent, and with due regard to general needs as regards the creation of landscape, environment and investments development. Land consolidation was also justified with a view to adjusting the existing relations between owners and users and eliminating any obstacles which had arisen as a result of past developments. The Constitutional Court held that section 7 et seq. of Act 64/1997 in no way affected the above general interest in land consolidation and that the plaintiffs had not challenged the relevant provisions of the Land Ownership Act or of the Land Consolidation Act. The plaintiffs also alleged that the compensation for land in garden colonies under section 11 of Act 64/1997 was disproportionate as it was substantially lower than the market value of that land. The Constitutional Court noted that the owners had the choice between alternative plots of land and financial compensation for their land situated in garden colonies. The users of the land could not be held liable and they should be not penalised for the fact that the owners had been deprived of the possibility of enjoying their property under a regime which had disregarded democratic principles. Furthermore, the users by cultivating the land had substantially increased its value. The Constitutional Court therefore accepted as just the relevant provisions under which the compensation to the owners should be based on the value of the property at the moment when the gardeners had started using it. The compensation under Act 64/1997 was therefore appropriate and compatible with the requirements of Article 1 of Protocol No. 1. Finally, the Constitutional Court found that section 17(3) of Act 64/1997 was unconstitutional as there was no justifiable public interest in transferring to the State ownership of land in cases where the user had failed to pay its price. In a separate opinion three Constitutional Court judges expressed the view that the compulsory lease under section 3 of Act 64/1997 was unconstitutional and that the compensation payable under section 11 was not appropriate as it was based on the value of the property at the time when the gardeners had acquired the right to use the land. b)     Other relevant practice In accordance with its established practice, the Constitutional Court lacks jurisdiction to examine a petition filed by natural or legal persons when the determination of the point in issue involves the preliminary question of conflict of legal rules (for example I. ÚS 96/93, decision of 16 November 1993 or I. ÚS 106/93, decision of 12 October 1993). COMPLAINTS   The applicants complained (i) that they had been obliged to lease their land at a price which is disproportionately low and (ii) that the transfer of the land to individual gardeners under Act 64/1997 had not been in the public interest, and that an excessive burden had thereby been imposed on them. They alleged a violation of Article 1 of Protocol No. 1. THE LAW The applicants complained that the lease of their land by gardeners and the subsequent transfer of the land to the tenants were contrary to their rights under 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.” 1.     As regards the locus standi of the second applicant The Government argued that the first applicant, as a community of land owners and a legal person under Slovak law, was entitled to take in its own capacity actions in respect of the land of its members. For that reason, the second applicant, as a member of that community, could not separately complain about a violation of his rights in respect of his share of land which the first applicant administered. Therefore the second applicant could not claim to be a victim within the meaning of Article 34 of the Convention. The Court notes that the applicant community of land owners is a legal person under Slovakian law. It filed the application through its president. There is no indication that any exceptional circumstances exist preventing the applicant community of land owners from pursuing the application to the Court through the organs set up under its articles. The Court therefore accepts the Government’s objection and concludes that the second applicant, as a member of the applicant community and its vice-president, cannot separately claim to be a victim of a violation of his rights under Article 1 of Protocol No. 1 (see, mutatis mutandis , Agrotexim and Others v.   Greece , judgment of 24 October 1995, Series A no. 330 ‑ A, p. 25, § 66; CDI Holding and Others v.   Slovakia (dec.), no. 37398/97, 18   October 2001). It follows that the part of the application which was introduced by the second applicant is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35   §   3 and must be rejected in accordance with Article 35   §   4. 2.     As regards the obligation to lease the land to gardeners The Government admitted that the compulsory lease of the land under sections 3 et seq. of Act 64/1997 constituted an interference with the first applicant’s rights under Article 1 of Protocol No. 1. It reflected the legislator’s position according to which it was in the general interest that the rights of persons using the land for gardening purposes should prevail over the rights of the owners of the plots of the land in garden colonies. By their work the gardeners had considerably increased the value of the land which, at the moment when the colonies had been established, had generally been unusable and of low quality. The land used by individual gardeners provided relaxation and made it possible to produce vegetables and fruit for at least 700,000 town dwellers. It was also in the general interest to consolidate the existing situation in a manner permitting an optimal use of the relevant plots of land while respecting the needs of the protection of environment as well as the establishment and maintaining of the landscape. With reference to the conclusions of the Constitutional Court and the Court’s practice, the Government argued that a fair balance had been struck between the general interest and the rights of the original land owners. The first applicant submitted that the rent which the gardeners had been obliged to pay under the relevant provisions of Act 64/1997 was lower than the real property tax payable in respect of that land. The interference complained of had therefore imposed a disproportionate burden on the original owners of the land. The Court considers, in the light of the parties’ submissions, that the complaint about the compulsory lease of the land under sections 3 et seq. of Act 64/1997 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 3.     As regards the transfer of ownership of the land to the gardeners The Government objected that it had been open to the first applicant to file an objection to the project of consolidation arguing that the value of the land which it was to receive in compensation was disproportionately low. If the administrative authorities had rejected the objection, the first applicant could have sought a judicial review of their decisions. Similarly, the first applicant could have challenged before a court the administrative decision of 11 February 2002 on approval of the land consolidation project. As the applicant community of land owners failed to use the above remedies, it had not, in the Government’s view, exhausted domestic remedies as required by Article 35 § 1 of the Convention. The first applicant maintained that it could not have obtained redress by means of the remedies invoked by the Government. An administrative court could only determine whether the administrative authorities involved had correctly applied the law. However, it could not determine the issue of which the applicant community complained before the Court, namely whether the effects of the application of the relevant law were compatible with its rights under Article 1 of Protocol No. 1. With reference to the practice of the Constitutional Court, the applicant community submitted that natural or legal persons lacked standing to directly bring constitutional proceedings in which the conformity of a law with the Constitution is to be determined as a preliminary issue. The Court notes that the applicant community has not argued that the domestic authorities incorrectly applied the relevant law. It accepts that the applicant community did not have at its disposal a directly accessible remedy permitting it to have a determination on whether or not the effects of the application of that law were contrary to its rights under Article 1 of Protocol No. 1. Furthermore, the arguments made by the first applicant were raised before the Constitutional Court in the context of different proceedings, and in its finding PL. ÚS 17/00 the Constitutional Court found that the relevant provisions of Act 64/1997 did not run counter to the land owners’ right to peaceful enjoyment of their possessions. In these circumstances, the Government’s objection relating to non-exhaustion of domestic remedies must be dismissed. As regards the transfer of ownership of the land in issue, the Government argued that it had been effected in the public interest for the reasons set out in sections 1 and 2 of the Land Consolidation Act of 1991. The legislator had considered that the rights of individual gardeners should prevail as they had re-cultivated land which had originally been devastated. The gardeners had become attached to the land whereas the owners had de facto been unable to use it for 50 years. In those circumstances, it was appropriate that the gardeners should obtain ownership of the land and that the original owners should receive compensation. For the purpose of proceedings under Act 64/1997, the value of the land was determined as at the date when it had been put at the disposal of the individual gardeners. It was justified by the fact that the gardeners had increased the quality of the land by cultivating it for decades, and that most of the gardeners belonged to the less well-off part of the population who would not be able to purchase the land at its market price. With reference to the James and Others v. the United Kingdom judgment, the Government concluded that there had been no violation of Article 1 of Protocol No. 1 as regards the transfer of the applicants’ land to persons who had used it as tenants. The first applicant contended that the deprivation of property in issue had not been necessary in the public interest and that an excessive individual burden had been imposed on it as a result of the land consolidation under Act 64/1997. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the first applicant’s complaints under Article 1 of Protocol No. 1 concerning the compulsory lease of the land and its subsequent transfer to members of the garden colony; Declares inadmissible the second applicant’s complaints.   Françoise Elens-Passos   Nicolas Bratza    Deputy Registrar   President