FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21280/02 by SIRMIUM, spol . s r.o . against Slovakia

The European Court of Human Rights ( Fourth Section), sitting on 24 October 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. 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 23 May 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a commercial private limited liability company which was established in 1996. Its registered name is SIRMIUM, spol . s r.o . and it was represented before the Court by Ms Z. Kupcová , a lawyer practising in Bratislava . The respondent Government were represented by Mrs A. Poláčková , their Agent.

A. The circumstances of the case

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

1. Factual background

In 1993 the National Council of the Slovak Republic (“Parliament”) enacted a law (Law no. 189/1993 Coll. – “the Act”), by which it established the Fund for Children and Youth ( Fond detí a mládeže – “the Fund”).

The Fund had its own legal personality and its principal task was to manage State property, as defined in the Act, in order to promote children ’ s and youth activities. In pursuit of that task, the Fund was authorised to engage in business activities.

On 22 June 2000 Parliament enacted an amendment (Law no. 220/2000 Coll.) to the Act. It entered into force on 21 July 2000.

Under section 3a(1) of the amended Act, any lease of property administered by the Fund for a period of more than 5 years necessitated the approval of the Ministry of Administration and Privatisation of National Property ( Ministerstvo pre správu a privatizáciu národného majetku – “the Ministry”). Pursuant to section 15a(1) of the amended Act, existing leases with a term of more than five years would be terminate d automatically ex lege six months after the entry into force of the amendment, unless they were approved by the Ministry. Under section 15a(2) and (3), if a lease was terminated as described above, the tenant was to vacate the property on pain of a financial penalty equal to ten times the monthly rent for each commenced month of default. The Fund was to compensate the tenant for improvements and repairs on the leased property, provided that the Fund had approved them and had undertaken to reimburse their cost.

According to the explanatory note ( dôvodová správa ) on the amendment, the aim of the amendment was to lay down basic rules and minimum standards for effective management of the State ’ s property in furtherance of the aims purs u ed by the Act. It was noted that the core of the Fund ’ s economic activities consisted in leasing out the property it managed. However, the leases had frequently been concluded on inadequate terms and for an excessive period , aspects which had to be regularised.

On 18 September 2000 a group of members of parliament challenged the amendment in the Constitutional Court ( Ústavný súd ). They were later joined in their challenge by the Prosecutor General.

On 12 October 2000 the Constitutional Court accepted the challenge for further examination.

On 17 January 2002 the Constitutional Court declared the whole of section 15a and certain other sections of the Act, as amended in 2000, contrary to several provisions of the Constitution. It held , inter alia , that these provisions infringed the principles of the division of S tate power, the prohibition of retroactivity, legality and access to a court. It was observed that they retroactively interfered with contractual arrangement of a private-law nature and bypassed the jurisdiction of the ordinary courts. Section 3a of the amended Act remained unaffected.

On 1 February 2002 the judgment ( nález ) of the Constitutional Court was published in the Collection of Laws. By operation of Article 125 § 3 of the Constitution , the unconstitutional provisions of the Act thus lost their legal effect. As Parliament took no steps to rectify them, six months later these provisions became void.

On 30 October 2003 Parliament passed a special law repealing the whole of the Act and winding up the Fund. This law (Law no. 4562/2003 Coll.) entered into force on 1 December 2003. As a consequence, the Fund entered into liquidation . The relevant procedure is still pending.

2. The applicant ’ s case

In 1996 the applicant company concluded an agreement with the Fund for the lease of commercial premises comprising a hotel for a term of 20 years.

The applicant company took over the leased premises, invested substantially in their renovation, and r a n a hotel in them.

Following the entry into force of the 2000 amendment to the Act, the applicant company sought the Ministry ’ s approval of the lease. On 18 August 2000 the Ministry declined to approve the lease . Consequently, the lease expired on 21 January 2001.

The applicant company then made several requests for the Fund to take over the premises. The Fund did so , but no earlier than 5 April 2001. The applicant company claims that until then it had to maintain the premises in order to prevent their deterioration and that it consequently incurred added expense and sustained material damage.

The applicant company also submits that, at that time, it did not know that the amendment had been challenged in the Constitutional Court and that the challenge had been accepted for further examination.

The applicant company subsequently ceased its commercial operations.

3. Other similar cases

(a) The E . -M . c ompany

Another c ompany , E.-M., leased commercial premises from the Fund. The lease was for a fixed term of 30 years.

On 7 March 2001, at the company ’ s request, the Bratislava I District Court ( Okresný súd ) indicated an interim measure ordering the Fund to allow the company to enjoy the premises peacefully. At the same time, the company was invited to bring, within 30 days, an action for a declaratory ruling that the lease agreement existed. The interim measure would stay in place until the final settlement of that action. In its rulings t he District Court observ ed that the 2000 amendment to the Act had been challenged in the Constitutional Court and that the proceedings were still pending.

The E .-M. company brought the action as it had been invited to do and the proceedings are still pending.

(b) The Y. c ompany

Another c ompany , Y ., leased commercial premises from the Fund. The lease was likewise for a fixed term of 30 years and the Ministry declined to approve it.

The Fund brought an action for Y . to vacat e the premises. On 17 December 2004 the Bratislava I District Court dismissed the action. It observed that the 2000 amendment was aimed at terminating leases such as the one concluded by Y . However, it had no actual effect on the lease in question because it had been automatically renewed by virtue of Article 676 § 2 of the Civil Code , which provided for the renewal of leases where, as in the present case, the landlord failed to apply within 30 days of the purported expiry of the lease for the premises to be vacated . The District Court also took notice of the Constitutional Court ’ s judgment of 17 January 2002 and held that legal relationships could not be based on unconstitutional laws.

(c) The e ntrepreneur M .

An e ntrepreneur , M ., leased commercial premises from the Fund. The lease was likewise for a fixed term of 30 years and the Ministry did not approve it. M . then vacated the premises.

On 5 August 2003 M . brought an action against the State, in the person of Parliament. He made further submissions on 28 February 2005. Relying on the Constitutional Court ’ s judgment of 17 January 2002, he argued that the termination of the lease in 2001 had been unconstitutional and, as such, unlawful. He invoked the State Liability Act of 1969 (Law no. 58/1969 Coll.) and claimed damages. The action is still pending.

(d) The E . -B . c ompany

Another c ompany , E . -B ., also had a long-term lease on premises administered by a subsidiary of the Fund. It declined to leave them , and in 2001 the Fund brought an action for its eviction.

The action was dismissed by the Liptovský Mikuláš District Court on 11 September 2002 and, on appeal, by the Žilina Regional Court on 13 September 2005. The courts observed that the relevant provisions of the 2000 amendment were unconstitutional and legally void. They could therefore not be used as a basis for a finding that the lease had expired and, consequently, for an order to vacate the premises. With reference to section 41b(2) of the Constitutional Court Act (Law no. 38/1993 Coll. – see “Relevant domestic law and practice” below), the courts found that even if an eviction order had been made in the circumstances of the case , it would not have been enforceable.

B. Relevant domestic law

1. The Constitution

Article 125 of the Constitution provides :

“1 . The Constitutional Court shall decide on the conformity of

( a) laws with the Constitution, constitutional laws and international treaties to which the National Council of the Slovak Republic has expressed its assent and which have been ratified and promulgated in the manner laid down by law,

...

3 . If the Constitutional Court finds a lack of conformity between legal instruments referred to in paragraph 1, the r elevant instrument s, parts of them or certain of their provisions shall lose their effect. The bodies that issued these legal regulations shall be obliged to harmoni s e them with the Constitution, with constitutional laws and with international treaties promulgated in the manner laid down by a law, and also, in the case of instruments referred to in paragraph 1 ( b) and ( c) , with other laws, and in the case of instruments referred to in paragraph 1 ( d) , with government regulations and with generally binding legal regulations issued by m inistries and other central S tate administrati ve bodies within six month s from the promulgation of the decision of the Constitutional Court. If they fail to do so, these instruments , parts of them or their provisions shall lose their effect six months after the promulgation of the decision.”

2. The Constitutional Court Act

Chapter ( hlava ) 2 of Part ( časť ) 3 lays down rules concerning the review of conformity of legislation. It contains , inter alia , the following provisions:

Section 41a

“ (1) The legal instrument , parts of it or some of its provisions shall lose their legal effect on the da te on which the judgment of the Constitutional Court is published in the Collection of Laws.

...

(3) The fact that a legal instrument loses its legal effect or validity on the basis of the judgment of the Constitutional Court shall not entail the renewal of the validity of any legal instruments which it repealed . However, if the original legal regulations were merely changed or amended, they shall be valid in the form prior to the [ annulled ] amendment.

...”

Section 41b

“ (1) If a court has delivered a judgement in criminal proceedings on the basis of a legal instrument which later lost its effect pursuant to Article 125 of the Constitution, and the judgment has bec o me final but has not been executed, the loss of the legal effect of the said instrument shall constitute a ground for reopening the case under the relevant provisions of the Code of Criminal Procedure.

(2) Other final decisions which were given in civil or administrative proceedings on the basis of a legal instrument that has lost its legal effect either totally or in part shall remain unaffected. Obligations imposed as a result of such decisions can not, however be enforced.”

3. Civil Code

Chapter 7 of Part 8 lays down rules concerning lease agreements . Section ( oddiel ) 3 deals with termination of lease s and contains , inter alia , the following provisions :

Article 676

“ 1 . A l ease shall terminate on the expiry of the term for which it was concluded, unless the parties agree otherwise.

2 . If the lessee uses the object of the lease after the termination of the lease and the lessor does not bring an action for restitution of the object within 30 days, the lease agreement shall be renewed on the same terms as agreed originally ... ”

4. Code of Civil Procedure

Article 80 contains general rules concerning the types and the scope of actions ( návrh na začatie konania ) in civil courts. It provides:

“Civil actions may be aimed at obtaining rulings concerning, in particular:

(a) personal status ... ,

(b) fulfilment of an obligation which stems from law, contract or breach of law;

(c) determination of whether a particular legal relationship or a right exists or does not, provided that the determination is justified by a pressing legal interest.”

5. State Liability Act of 1969 (Law no. 58/1969 Coll.)

The scope of the Act is defined in section 1, which provides that the State is liable for damage caused by unlawful decisions by its bodies and agencies in civil proceedings, administrative proceedings, criminal proceedings (with the exception of decisions concerning detention and penalt ies ) and proceedings before notaries.

Under section 4(1), a claim for damages can be brought only if the impugned decision was quashed for being unlawful by the competent authority.

Section 18(1) renders the State liable for damage caused by wrongful official conduct on the part of State bodies and authorities in carrying out their functions.

A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act by a public authority, quantifies its amount, and shows that there is a causal link between the damage and the wrongful act in question.

COMPLAINTS

1. The applicant company alleged a violation of its right of access to a court under Article 6 § 1 of the Convention in that ( i ) the lease agreement of 1996 had been terminated ex lege and not by a judicial decision ; and (ii) there was no way for it to claim compensation for the damage it had sustained as a consequence of the unconstitutional amendment of 2000.

2. The applicant company further complained under Article 1 of Protocol No. 1 that the unconstitutional amendment had “deprived” it of its “possessions”, most notably the lease agreement of 1996. As a result, it had lost clientele, had incurred added expense and damage, and had gone out of business. The applicant company maintained that there was no way for it to claim compensation in respect of th o se losses at domestic level.

3. The applicant company lastly complained under Article 13 of the Convention that there was no effective remedy at its disposal in respect of the above complaints.

THE LAW

1. The applicant company complained of a violation of its right of access to a court under Article 6 § 1 of the Convention and a violation of its right under Article 13 of the Convention to an effective remedy in that respect.

In so far as relevant, Article 6 § 1 of the Convention provides:

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

Article 13 reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submitted that the complaint was out of time . In their view, the six-month time-limit had started to run on 21 January 2001, when the applicant company ’ s lease had purportedly expired, or, at the latest, on 5 April 2001, when the Fund had taken over the premises. However, the application had not been lodged until 23 May 2002.

The Government further submitted that, in any event, this part of the application was manifestly ill-founded because, contrary to its allegations, the applicant company had access to a court. In particular, it was open to it to seek a judicial ruling under Article 80 (c) of the Code of Civil Procedure that the lease contract existed. It was furthermore open to the applicant company to seek damages from the State under the State Liability Act of 1969. They referred to the other cases summarised above (see “Other similar cases”) , maintained that these cases were similar to that of the applicant company and considered that such means of action were available to it both in theory and in practice.

The applicant company argued that the time-limit laid down in Article 35 § 1 of the Convention had started to run at the earliest on 1 February 2002, when the Constitutional Court ’ s judgment had been published in the Collection of Laws, and that the application had consequently been submitted in time.

The applicant company also maintained t hat the action under Article 80 (c) of the Code of Civil Procedure was not applica ble to the present case because it could only be used to obtain a positive declaration in respect of legal relationships which actually existed. The applicant company ’ s lease agreement had , however , expired ex lege in 2001. Since then it had not been renewed or validated in any lawful way. It thus did not legally exist and no declaration of its existence could be issued . The applicant company also contested the possibility of claiming damages from the State under the State Liability Act of 1969 in circumstances such as those of the present case. To that end, the applicant company argued that the other “similar” cases to which the Government referred were either not exactly similar or were still pending. The applicant company referre d to the judgment of 17 January 2002 in which the Constitutional Court had found that the 2000 amendment to the Act had interfered with the concept of the right of access to a court , and invited the Court to follow the same approach.

The Court observes that the core aspects of the present complaint and, in fact, of the whole application are the termination of the applicant company ’ s lease in 2001 by operation of the law, the company ’ s inability to challenge the termination in the courts, the losses occasioned as a result of the termination, and the lack of any compensation, despite the Constitutional Court ’ s judgment of 17 January 2002.

The Court further observes that the applicant company engaged in business and had a lease agreement with the Fund for 2 0 years. In 2000 the legislature enacted new rules, as a consequence of which the applicant company ’ s lease expired prematurely, on 21 January 2001. The new rules arguably do not contain any provisions for compensation of the kind that the applicant company sought before the Court. Yet the applicant company abided by th o se rules and vacated the premises on 5 April 2001. These events took place more than six months before the application was lodged on 23 May 2002. They were not followed by any individual proceedings concerning the applicant company and its legal position in this context.

As to the Constitutional Court ’ s judgment of 17 January 2002, it is to be noted that it originated from the proceedings that had been initiated by a group of members of parliament and the Prosecutor General. The applicant company was not a party to th o se proceedings and, as it claims, it did not even have any knowledge of them. The effect of the Constitutional Court ’ s judgment was that the impugned provisions of the 2000 amendment lost their legal effect and later became void. The effect of the judgment was legislative in nature . It contained no ruling concerning individual cases and no ruling that had retrospective effect.

It remains to be ascertained whether any such retrospective effect on the applicant company ’ s legal position can result from the operation of the law. There appear to be no express legal rules to that effect. The fact that the applicant company vacated the premises is of relevance in this context in that if the Constitutional Court ’ s judgment were to have retrospective effect, the vacation of the premises and any possible future arrangements concerning the premises would have to be reversed. Such an approach could run counter to the principles of legal certainty and the protection of rights acquired in good faith by third parties. It is also to be noted that the potential need to reverse legal de velopments which occurred in the meantime differentiates the present case from those of the E . -P . , Y and E . ‑ B . companies , which did not leave the premises in question and merely defended actions for their eviction. As to the possibility of claim ing damages from the State on the basis of the Constitutional Court ’ s judgment of 17 January 2002, there appear to be no relevant precedent s and the civil action by the entrepreneur M . is still pending. In these circumstances the Court finds that the Constitutional Court ’ s judgment of 17 January 2002 did not have any such legal effects on the present case as to cause the six-month period provided for in Article 35 § 1 of the Convention to resume running .

It follows that the complaints under Article 6 § 1 of the Convention have been lodged out of time and must be dismissed in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant company also alleged a violation of its rights under Article 1 of Protocol No. 1, both alone and in conjunction with Article 13 of the Convention.

Article 1 of Protocol No. 1 provides:

“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.”

The Government submitted that the applicant company had defendable claims against the Fund for a declaratory ruling confirming the lease agreement and against the State, in the person of Parliament, for damages. The Government also a r gued that the complaint was out of time .

The applicant company submitted that the remedies referred to by the Government were not effective in the circumstances of the present case and that the application had been submitted in time.

The Court observes that the complaint under Article 1 of Protocol No. 1, both taken alone and in conjunction with Article 13 of the Convention, has the same factual and legal background as the complaint under Article 6 § 1, alone and in conjunction with Article 13 of the Convention . The latter complaint was found above to be inadmissible as being out of time . The Court finds no reason to reach a different conclusion under Article 1 of Protocol No. 1 , taken alone and in conjunction with Article 13 of the Convention.

It follows that this complaint has been lodged out of time and must be dismissed in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention; and

Declares the application inadm issible.

Françoise Elens-Passos Nicolas Bratza    Deputy Registrar President