THIRD SECTION

DECISION

Application no . 18803/10 Mária BAŠISTOVÁ and others against Slovakia

The European Court of Human Rights ( Third Section ), sitting on 4 November 2014 as a Chamber composed of:

Josep Casadevall , President, Luis López Guerra , Ján Šikuta , Dragoljub Popović , Kristina Pardalos , Johannes Silvis , Valeriu Griţco , judges, and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 19 March 2010 ,

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

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 Ko šice . The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková .

A. The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

1. P roperty and context

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. Th e sports centre comprises buildings and various other facilities , such as a tennis court, a grandstand, a water station and pave d 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 who m 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.

2 . The 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 . T he 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 ). I n 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 Arti cle 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 establish ed as the owners of the constructions and to o rder them to pay the current owners financial compensation. Furthermore, in the circumstances, it was likewise not practical to order the physical removal of the construction s 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 C ourt 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 2 0 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 .

3 . Final domestic decision

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 no t 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.

B. Relevant domestic law and practice

1. Civil Code

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 building s at the cost of the person who constru ct ed 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 ).

2 . Judicial practice

(a) C ase 15C 251/94

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 th o se questions, the Regional Court had noted that the land in question had been expropriated in 1984. T he Regional Court had therefore held that, even assuming that the expropriation had been flawed, it could only have be en challenged by means of administrative-law remedies and within the time ‑ limits 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. A s was found in the present case (see paragraph 12 above), it found that the expropriation of 1984 was legally ineffective. A s 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.

(b) Other j udgments concerning similar claims

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 . T he 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 le x speciali s . However, that position does not appear to be settled.

C. R elevant E uropean texts

1. Report on the Rule of Law by the Venice Commission, 25-26 March 2011

2 . Opinion no. 11 (2008) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on the quality of judicial decisions

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.”

COMPLAINTS

32. The applicants complained under Article 6 § 1 of the Convention that the proceedings in respect of their action had been unfair in that part of the action had been arbitrarily dismissed and the courts had failed to respond to the argument that, in another similar case , the same District Court had reached a different conclusion .

33. For similar reasons, the applicants also alleged that their rights under Article 1 of Protocol No. 1 had been violated .

34. T he applicants also complain ed under Article 6 § 1 of the Convention that the length of the proceedings had been excessive and under Article 1 of Protocol No. 12 that they ha d been discriminated against without any acceptable justification in relation to the other claimants referred to above, and in relation to other property owners in conceptually similar situations, for whom a special legal regime had been created providing for the establishment of an easement ( for example, the owners of land on which highways had been built ).

THE LAW

A. Fairness of the proceedings

35. Th e applicants contended that the proceedings had been unfair , contrary to Article 6 § 1 of the Convention, the relevant part of which provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

1. Parties ’ arguments

36. T he Government pointed out that the twenty-third applicant had not been a party to the proceedings at the domestic level. They submitted that there was no indication as to whether he was related to another person who had been a party to those proceedings but was not an applicant before the Court. They considered that, therefore, the twenty-third applicant ’ s complaints to the Court were incompatible ratione personae with the provisions of the Convention.

37. They further submitted that the situation in case no. 15C 251/94, as referred to by the applicants (see paragraphs 23 et seq . above), had been factually complex and generally obscure. At no stage of the proceedings in that case had the question of the applicability of the general provisions on property law been actually examined. The jurisprudential value of the judgments in that case was therefore insignificant.

38 . As for the applicants ’ case, the Government emphasised that the District Court ’ s judgment of 24 November 2008 had been in full compliance with the Supreme Court ’ s judgment of 25 February 1999 rendered in the context of case no. 15C 251/94 (see paragraph 24 above). In ruling on the applicants ’ appeal in the present case, the Regional Court endorsed the District Court ’ s reasoning and amended it by adding detailed references to the existing judicial practice. The outcome of the proceedings was ultimately upheld by the Constitutional Court.

39. The Government concluded that the proceedings had conformed to the requirements of fairness under Article 6 § 1 of the Convention and that the complaint was manifestly ill-founded.

40. T he applicants disagreed and reiterated their complaints. T hey emphasised that all the various sets of proceedings concerning the land on which the sports centre had been built involved residents of the same village and neighbours, most of whom were related . They were legally and factually in exactly the same situation, intensely shared information as to the development of their respective lawsuits, had had the same legal representation, and their claims and subsequent argumentation had been identical. Moreover, their claims had been subject to the same legal provisions and they had all asserted their rights before the same courts at more or less the same time.

41. As to case no. 15C 251/94, the applicants submitted that it had been meant to serve as a pilot case to be followed in the other parallel lawsuits concerning the same matters. It was all the more striking that the courts had failed to follow the example of that case and had arrived at varying conclusions. The applicants considered the domestic courts ’ decision ‑ making disorderly and submitted that this had been accentuated by the excessive length of the proceedings.

2. The Court ’ s assessment

42 . The Court considers that it is not called upon to resolve separately the Government ’ s objection of incompatibly ratione personae of the application in so far as bro u ght by the twenty-third applicant because the whole application is in any event inadmissible for the following reasons.

(a) General principles

43. The Court observes that the present case raises issues of adequate reasoning and conflicting court decisions.

44. As to the former point, the Court reiterates that Article 6 § 1 of the Convention obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which the duty to give reasons applies may vary according to the nature of the decision. It is necessary to take into account, inter alia , the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain , 9 December 1994, § 29, Series A no. 303-A).

45. On the issue of conflicting court decisions, the Court observes that the relevant Convention principles have been summarised in its judgment in the case of Albu and Others v. Romania (nos. 34796/09 and sixty-three other cases, § 34, 10 May 2012, with further references) as follows:

( i ) It is not the Court ’ s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Likewise, it is not its function, save in the event of evident arbitrariness, to compare different decisions of national courts, even if given in apparently similar proceedings, as the independence of those courts must be respected;

(ii) The possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction;

(iii) The criteria that guide the Court ’ s assessment of the conditions in which conflicting decisions of different domestic courts ruling at last instance are in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention consist in establishing whether “profound and long ‑ standing differences” exist in the case-law of the domestic courts, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect;

(iv) The Court ’ s assessment has also always been based on the principle of legal certainty , which is implicit in all the Articles of the Convention and constitutes one of the fundamental aspects of the rule of law;

(v) The principle of legal certainty guarantees, inter alia , a degree of stability in legal situations and contributes to public confidence in the courts. The persistence of conflicting court decisions, on the other hand, can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law;

(vi) However , the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law. Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement.

(b) Application of these principles in the present case

46. The Court observes that the problem obtaining in the present case is set against the background of regularisation of the relations hip between ownership and use of real property constituting or related to the sports centre , and that the sports centre would appear to function as a single complex. This regularisation process has involved a relatively limited number of actors , who were all legally and factually in practically the same position. The claimants had a common history and their claims were made through the same legal representation, around the same time, before the same courts and on the basis of the same arguments.

47. In such circumstances , the Court observes with concern that the claims concerning the property in question appear to have resulted in three different types of outcome.

48. Firstly, in case no. 15C 251/94, an easement was established over the entirety of the real property concerned, irrespective of whether or not there was a “building” on the impugned plot of land (see paragraphs 23 et seq . above).

Secondly, in the present and another case an easement was established only over the land on which a “building” was situated (see paragraph 28 above).

T hirdly , in a number of cases subsequent to the present one, no easement was established at all on the ground s that the claimants had no standing to sue over that matter under the general provisions of the Civil Code.

49. However, in so far as the present case is concerned, the Court is of the opinion that only the alleged discrepancy between the first two categories of outcome is of relevance. This is so because the assessment at the domestic level of the cases in the third category revolved around the question whether the property claims could have validly been made under the general provisions on the protection of property under the Civil Code. The courts in the present case resolved that question in the affirmative. Thus, the domestic courts ’ interpretation of the applicable laws in the cases resulting in the third category of outcome was less advantageous for the respective claimants than that of the applicants and, as such, it does not favour the argument raised by the applicants in the present case.

50. From that perspective, the Court observes that the position taken by the courts in the present case is in the “second category” and that accordingly it directly contradicts the conclusion reached in case no. 15C 251/94 .

51. The Court further observes that, contrary to the applicants ’ proposition, the establishing of an easement over the land concerned in case no. 15C 251/94 en bloc – that is, irrespective of whether the land was under a “building” or not – was not preceded by an analysis of that specific question. In so far as the applicants sought to rely on the Supreme Court ’ s judgment of 25 February 1999 , the Court observes in particular that that judgment was concerned with the legal effects of the 1984 expropriation and the ordinary courts ’ power to examine the question of the claimants ’ ownership independently of th at expropriation, rather than with the implications of there being no “building” on the claimants ’ land.

52. In addition, the Court observes that the establishing of the en bloc easement in case no. 15C 251/94 has never been tested on appeal, that it preceded the applicant ’ s case and that there has been no indication of such a stance being taken by the courts subsequently.

53. In these circumstances, the Court notes that it does not appear that the proceedings in the applicants ’ case were vitiated by any “profound and long-standing” divergence of the domestic courts ’ case-law.

54. As to the adequacy of the domestic courts ’ reasoning, the Court acknowleges that the domestic courts do not appear to have taken any specific position in relation to the applicants ’ arugments concerning the alleged discrepancy with the outcome of case no. 15C 251/94 and the fact that the property in question functioned as a single complex.

55. Nevertheless, the Court observes that the domestic courts at two levels of ordinary jurisdiciton took and assessed complex written and oral evidence, including expert evidence, that they provided detailed reasoning for their findings of fact and that they analysed the case at length in terms of statutory law as well as case-law. The applicants were represented by a lawyer throughout the proceedings and were provided with ample opportunity to state t h e i r arguments, to challenge the submissions made by the defendant s and to submit any evidence t he y considered relevant to the outcome . Furthermore, the fairness of the proceedingss as a whole was ultimately reviewed and upheld by the Constitutional Court and the Public Prosecution Service.

56. Moreover, the Court is of the opinion that the absence of a specific judicial answer to the applicants ’ argument made in reliance on the outcome of case no. 15C 251/94 has to be seen in correlation with the relevance of that argument as established above.

57. Thus , in the light of all the material in its possession, and in so far as the matters complained of under Article 6 § 1 of the Convention have been substantiated and are within its competence, the Court finds that they do not disclose any appearance of a violation of the applicants ’ rights under th at provision .

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Article 1 of Protocol No. 1

58. For similar reasons to those mentioned above, the applicants also complained of a violation of their rights under Article 1 of Protocol No. 1 to the Convention, 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.”

59 . In reply, the Government reiterated their arguments in respect of the unfairness complaint under Article 6 § 1 of the Convention and considered the applicants ’ similar complaint under Article 1 of Protocol No. 1 manifestly ill-founded.

60 . T he applicants did not submit any specific comments on this part of their application.

61 . The Court observes that the applicants ’ complaint under Article 1 of Protocol No. 1 has the same basis, factually as well as in terms of procedural and substantive law , as their complaint under Article 6 § 1 of the Convention. It finds no reason to reach a different conclusion under the latter provision.

62 . In addition, the Court observes that the applicants have not provided the Court with any information as to the further course and outcome (if any) of the proceedings concerning their claim for compensation in respect of the easement established in the proceedings in the present case . The substantive overall impact of the restrictions on their property rights therefore cannot be assessed in Convention terms.

63. Moreover, the Court observes that no arguments have been presented by the applicants or established otherwise to challenge the domestic courts ’ conclusion that other means of asserting their property rights may be available to the applicants at the domestic level.

64 . In sum, in the light of all the material in its possession, and in so far as the matters complained of under Article 1 of Protocol No. 1 have been substantiated and are within its competence, the Court finds that they do not disclose any appearance of a violation of the applicants ’ rights under th e provision invoked .

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Remaining complaints

65. Lastly, the applicants complained , under Article 6 § 1 of the Convention , about the length of the proceedings and under Article 1 of Protocol No. 12 of discrimination in relation to the other claimants referred to above, and in relation to other property owners in conceptually similar situations.

66. However, in the light of all the material in its possession, and in so far as these complaints are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that th e remainder of the application must be rejected in accordance with Article 35 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Stephen Phillips Josep Casadevall Registrar President

Appe ndix