THIRD SECTION

DECISION

Application no . 46214/11 Ele o n ó ra ŠKODOVÁ and Pekka Tapani KORKEILA against Slovakia

The European Court of Human Rights (Third Section), sitting on 18 June 2013 as a Committee composed of:

Luis López Guerra , President, Ján Šikuta , Nona Tsotsoria , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 22 July 2011,

Having deliberated, decides as follows:

THE FACTS

1. The first applicant, Ms Eleonóra Škodová , is a Czech National. The second applicant, Mr Pekka Tapani Korkeila , is a Finnish national. They were both born in 1945 and live in Prague (the Czech Republic).

2. The applicants were represented before the Court by Mr M. Nespala , a lawyer practising in Prague.

A. The circumstances of the case

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

1. Background

4. The applicants own real property situated in the cadastral area of Banská Belá (Slovakia). It consists of a family house and the land underneath it, as well as of several plots of adjacent land.

5. There has been a long-lasting dispute with the successive owners and users of the neighbouring plots over the industrial operation of a sawmill located on those plots and, in particular, the noise and other forms of pollution generated by the mill.

6. The dispute has included the proceedings complained of in the present application, which are depicted in paragraphs 6 et seq. below, as well as a good number of other proceedings, two of which are referred to in paragraphs 13 et seq. below.

2. Impugned proceedings and decisions

7. On 23 October 2007 the then operator of the mill requested that the environmental authorities categorise the mill ’ s sawing unit and an associated heating facility as “small sources of air pollution”.

8. On 17 March and 4 August 2008 the request was granted by the Banská Štiavnica County Office of Environment and, following an administrative appeal by the first applicant, by the Banská Bystrica Regional Office of Environment, the latter correcting certain formal flaws in the former ’ s decision.

9. On 14 October 2008 the first applicant challenged the decisions of 17 March and 4 August 2008 by way of an administrative-law action.

10. On 29 April 2009 the Banská Bystrica Regional Court granted the action in so far as it was directed against the Regional Office of Environment, quashed its decision on account of a number of procedural errors and remitted the matter for a new determination of the first applicant ’ s administrative appeal.

11. On 17 August 2010, following the defendant ’ s appeal, the Supreme Court quashed the Regional Court ’ s judgment and discontinued the proceedings.

The Supreme Court observed that the impugned administrative decision concerned the legal position of the operator of the sawmill. However, there was no appearance that, as such, it had any impact on the first applicant ’ s own fundamental rights and freedoms.

Moreover, the impugned administrative decision fell within the ambit of Article 248 (b) of the Code of Civil Procedure (see paragraph 16 below) as it depended exclusively on the assessment of a technical question concerning the sawmill in question. As such, the decision was not reviewable by a court.

Furthermore, the Supreme Court observed that the impugned decision was to serve as a technical basis for an ensuing decision on the merits in construction proceedings. The impugned decision and the decision on the merits were to be considered a “chain decision” and the action contesting the impugned decision alone was premature.

The Supreme Court also observed that the decision on the merits was going to be reviewable by a court. Its ruling was thus compatible with the guarantees under Article 46 § 2 of the Constitution of “judicial and other protection” in respect of decisions of public-administration bodies (see paragraph 15 below).

12. The applicants then seized the Constitutional Court with a complaint under Article 127 of the Constitution, challenging the administrative decisions 17 March and 4 August 2008, the judgment of 29 April 2009 and the decision of 17 August 2010 and alleging a violation of their rights of access to a court, to a fair hearing and to favourable environment.

In particular, the applicants argued that the environmental authorities and the courts had failed to establish all the relevant facts and to give the applicants adequate opportunity to make their case.

13. On 14 December 2010 the Constitutional Court declared the complaint inadmissible.

It held first of all that under the principle of subsidiarity it had no jurisdiction to review the decisions of the administrative authorities and the judgment of the Regional Court because all of them were reviewable by a higher administrative or judicial authority. The only decision directly susceptible of the Constitutional Court ’ s review was thus that of the Supreme Court.

As for the Supreme Court ’ s decision, the Constitutional Court found it congruous, convincingly reasoned, lawful and free from arbitrariness.

With regard to the applicants ’ right to favourable environment, the Constitutional Court noted specifically that, in the circumstances, it was still open to them to assert this right in the administrative proceedings on the merits and, in addition, also before the ordinary courts.

The decision was served on the applicants ’ lawyer on 25 January 2011.

3. Other proceedings involving the applicants

14. In the context of the above-mentioned dispute, the applicants lodged several unsuccessful requests for interim measures with a view to having the operation of the sawmill prohibited by a court.

These requests included one that ultimately led to the Constitutional Court ’ s decision of 27 October 2010 to declare inadmissible the applicants ’ complaint.

In that decision, the Constitutional Court noted inter alia the findings of the ordinary courts that the applicants were neither living nor staying in Banská Belá and that the presence of the impugned noise had been established only at the time of the noise measuring. For the determination of the duration and intensity of such noise it was necessary to take and examine evidence, which was beyond the scope of the proceedings on an interim measure. It could take place in the framework of an action on the merits, which however the applicants had not initiated. Moreover, their interim-measure request had been incorrectly formulated.

The Constitutional Court endorsed the ordinary courts ’ conclusions and observed, in addition, that the contested situation had lasted for about seven years. There was therefore no urgency and, in the circumstances, the appropriate course of action for the applicants was to assert their rights by way of an action on the merits aimed at protection of their property and its enjoyment.

15. On 26 April 2011, in an unrelated set of construction proceedings, the Banská Belá construction authority issued an order for the removal of certain construction modifications that had been carried out on the sawmill without a construction approval. However, on 2 August 2011 this decision was quashed and the matter was remitted by the Banská Bystrica construction authority to the Banská Belá construction authority following appeal by the mill operator.

The main reason for the quashing of the removal order was that the Banská Belá construction authority had failed to specify with adequate precision the construction modifications to be removed.

The decision was upheld by the Ministry of Transportation, Construction and Regional Development on 16 January 2012 following a protest by the Public Prosecution Service, in which they had argued that it was for the Banská Bystrica construction authority to remedy the removal order directly without remitting the case to the Banská Belá construction authority.

No information has been made available concerning the further course and outcome of these proceedings.

B. Relevant domestic law

1. Constitution

16. The “right to judicial and other legal protection” is laid down in Section ( Oddiel ) Seven of Part ( Hlava ) Two, dealing with “basic rights and freedoms”. The relevant part of Article 46 provides as follows:

“1. Everyone shall be able to assert his or her rights in a procedure provided for by a statute before an independent and impartial court of law and, in cases defined by a statute, before another organ of the Slovak Republic...

2. Any person who claims that his or her rights have been curtailed by a decision of a body of public administration may have the lawfulness of such a decision reviewed by a court unless the law provides otherwise. However, the review of decisions concerning fundamental rights and freedoms may not be excluded from the jurisdiction of the courts.

...

4. Conditions and details of judicial and other legal protection shall be provided for by a statute.”

2. Code of Civil Procedure

17. Part ( Časť ) 5 governs the administrative judiciary. Chapter ( Hlava ) 2 of this Part lays down the rules for a review of the lawfulness of decisions taken by administrative authorities on the basis of administrative-law actions.

Article 248 defines situations in which administrative tribunals have no jurisdiction to review administrative decisions on the basis of administrative ‑ law actions. Pursuant to its letter (b) administrative tribunals have no jurisdiction to review:

“decisions the issue of which depends exclusively on the assessment of health of persons or technical condition of things, provided that such decisions do not constitute a legal obstacle to the exercise of a profession, employment or entrepreneurial or other economic activity.”

COMPLAINTS

18. Considering the Constitutional Court ’ s decision of 14 December 2010 as the final domestic decision, the applicants alleged a violation of their rights under Articles 2, 6 § 1 and 8 of the Convention and 1 of Protocol No. 1. In particular, they argued:

- that the State had failed to discharge its positive obligation to protect their right to life and to respect for their private life and home;

- that they had been deprived of the right of access to a court and that the proceedings had been unfair because the authorities had arbitrarily omitted to take and examine the evidence, which the applicants had been adducing, and because the principle of equality of arms had been disrespected; and

- that, as a result, their property could neither be used nor sold.

19. In connection with the violations alleged above, the applicants also alleged a violation of their right to an effective remedy under Article 13 of the Convention.

THE LAW

A. Articles 2 of the Convention and 1 of Protocol No. 1

20. The applicants alleged that the outcome of the proceedings leading up to the Constitutional Court ’ s decision of 14 December 2010 w as contrary to their right to life and the guarantees of the protection of property.

21. The Court observes that the complaints now made under Articles 2 of the Convention and 1 of Protocol No. 1 have not been raised before the Constitutional Court.

It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Article 6 § 1 of the Convention

22. The applicants complained that they had been deprived of access to a court and that the proceedings had been unfair, contrary to Article 6 § 1 of the Convention, which reads as follows:

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

23. The Court observed that the guarantees of the civil limb of Article 6 § 1 of the Convention extend only to proceedings which involve the determination of an applicant ’ s “civil rights and obligations”. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, for instance, Werner v. Austria , 24 November 1997, § 34 , Reports of Judgments and Decisions 1997-VII ).

24. However, as concluded by the Supreme Court, whose conclusion has been endorsed by the Constitutional Court, the contested proceedings concerned a question of technical categorisation of the sawmill and the connected heating facility. Such question of itself had no direct impact on the applicants ’ legal position and any possible ensuing decision on the merits with such a direct effect on the applicants was reviewable by a court.

25. In these circumstances the Court considers that the complaints made under Article 6 § 1 of the Convention falls outside the material scope of that provision and that, in any event, there is no issue of access to a court.

Moreover, in so far as substantiated, this part of the application mainly concerns questions of a fourth-instance nature, which the Court has a limited power to review under that Article.

26. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Article 8 of the Convention

27. The applicants complained that the State had failed to ensure the enjoyment of their right to respect for private life and home under Article 8 of the Convention which, in so far as relevant, provides as follows:

“1. Everyone has the right to respect for his private ... life [and] his home ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

28. The Court observes first of all that the applicants neither live nor stay in Banská Belá and that they live in another city in another country. It may therefore be questioned whether and, if so, to what extent they can be considered victims in terms of Article 34 of the Convention of the violation they allege under Article 8 of the Convention (see, mutatis mutandis , L.Z. v. Slovakia ( dec. ), no. 27753/06, 27 September 2011). However, the Court considers that these questions need no answering because the complaint is in any event inadmissible on the following grounds.

29. For that matter, the Court observes that the complaint has the same factual, procedural and substantive background as that under Article 6 § 1 of the Convention. It likewise observes that the proceedings and the decisions complained of had no direct impact on the applicants ’ legal position. However, as found by the Constitutional Court in its decision 27 October 2010 (see paragraph 13 above), the appropriate way for the applicants to assert their right to “favourable environment”, which lies at the heart of their complaint under Article 8 of the Convention, was to bring an action on the merits for the protection of their property and its enjoyment. This position is consonant with that taken by the Constitutional Court in its decision of 14 December 2010 (see paragraph 12 above). The applicants have however not pursued this course of action.

Furthermore, the Court observes that following the quashing of the order for removal of certain construction modifications on the sawmill the matter was remitted for a new determination. However, despite being represented by a lawyer, the applicants have not submitted any new information as to the further course and outcome of those proceedings.

30. Therefore, in so far as substantiated, the Court finds that the matters complained of do not disclose any appearance of a violation of the applicants ’ rights under Article 8 of the Convention.

It follows that the complaint under Article 8 of the Convention is in any event manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

D. Article 13 of the Convention

31. In connection with the violations alleged above, the applicants also alleged a violation of Article 13 of the Convention.

32. In view of the above conclusions concerning the other alleged violations, the Court finds that the applicants do not have had an “arguable claim” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131).

33. It follows that, in addition to other possible grounds of inadmissibility, the complaint under Article 13 of the Convention must in any event be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Luis López Guerra Deputy Registrar President