THIRD SECTION

CASE OF VRABEC AND OTHERS v. SLOVAKIA

( Application no. 31312/08 )

JUDGMENT

STRASBOURG

26 March 2013

FINAL

26/06/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Vrabec and Others v. Slovakia ,

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

Josep Casadevall , President, Alvina Gyulumyan , Corneliu Bîrsan , Ján Šikuta , Luis López Guerra , Nona Tsotsoria , Valeriu Griţco , judges, and Santiago Quesada , Section Registrar ,

Having deliberated in private on 5 March 2013 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 31312/08) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Slovak nationals , whose particulars appear in the appendix (“the applicants”) .

2 . The applicants were represented by Mr J. Mochnacký, a lawyer practising in Lu č enec. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Piro šíková.

3 . The applicants alleged, in particular, that the courts had failed to address their arguments and had dismissed their claim for restitution of real property arbitrarily, in disregard of the principal of l egal certainty .

4 . On 2 December 2011 the application was communicated to the Gove rnment. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . In 1951 the State authorities took more than three hectares of land from a relative of the applicants . No compensation was paid to the owner.

6 . The applicants unsuccessfully claimed restitution of the land under Law no. 503/2003. In particular, in a judgment of 13 December 2006 the Supreme Court held , in a review of the decisions made at lower levels of jurisdiction , that the land had been formally transferred to the State pursuant to Ordinance 15/1959. Section 3 of Law no. 503/2003 did not include such a situation as ground s for restitution of property. The applicants could have claimed restitution of the land earlier , under Law no. 403/1990 , but they had not done so.

7 . On 23 April 2007 the applicants lodged a complaint with the Constitutional Court . They alleged a breach of Article 6 § 1 of the Convention , and also of their constitutional right to own property.

8 . In particular, the applicants argued that the land had been expropriated without compensation. It was therefore liable to restitution under section 3(1)(m) and (n) of Law no. 503/2003 , irrespective of the fact that that law contained no reference to Ordinance 15/1959. They referred to the Supreme Court ’ s judgment 3S žoKS 130/2005 of 9 June 2006 , which found that a situation similar to that of the applicants fell under Law no. 503/2003.

9 . On 25 October 2007 the Constitutional Court dismissed the complaint (decision III. ÚS 287/07 ). It held that the Supreme Court had given sufficient reasons for its judgment , which was neither arbitrary nor otherwise contrary to the constitutional principles. It was not for the Constitutional Court to review the way in which ordinary courts interpreted and applied the law unless it resulted in a breach of the Constitution.

10 . The decision was served on 18 December 2007.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Law no. 503/2003

11 . Law no 503/2003 governs restitution of agricultural land and forests.

12 . Cases in which land is to be restored to owners or their successors are listed in section 3. In particular, sub-section 1(m) of section 3 refers to situations where land ha s been expropr iated without compensation. Sub ‑ section 1(n) refers to nationalisation contrary to the legal rules then in force or without compensation.

B. The Supreme Court ’ s practice

13 . In its judgment 3S žoKS 130/2005 of 9 June 2006 the Supreme Court held that transfer of property under Ordinance 15/1959 without compensation was to be qualified as a reason for restitution of such property under section 3(1)(m) of Law no. 503/2003. Any other interpretation of that provision would run contrary to the Constitution.

14 . The same conclusion was reached in judgment 6 S žo 240/2008 of 14 October 2009 as rectified by the decision u nder the same file number of 27 November 2009 .

15 . In a n unspecified number of other decisions the Supreme Court expressed a different view on the matter, namely the same as expressed in the above judgment on the applicant ’ s case of 13 December 2006.

C . The Constitutional Court ’ s practice

16 . In j udgment IV. ÚS 209/2010 of 16 September 2010 the Constitutional Court found , with reference to the Supreme Court judgments 3S žoKS 130/2005 of 9 June 2006 and 6 S žo 240/2008 of 14 October 2009 (see paragraphs 13 and 14 above) , that the varying practice on the part of the Supreme Court when determining whether expropriation of land under Ordinance 15/1959 fell under Law no. 503/2003 ran contrary to the principle of legal certainty. That in itself justified the conclusion that the plaintiff ’ s constitutional rights had been breached.

17 . In the same judgment the Constitutional Court further found that the Supreme Court ’ s view , that land expropriated under Ordinance 15/1959 could not be restored under Law no. 503/2003 , was formalistic and contrary to the purpose of that Law. The explanatory report to Law no. 503/2003 specified that it extended to individuals who could have , but had not , submitted their claim within time-limits set in different pieces of legislation which had been enacted previously .

18 . The Constitutional Court quashed the Supreme Court ’ s judgment in issue and returned the case to the latter.

19 . Subsequently , similar views and conclusions were reached in other judgments of the Constitutional Court ( III. ÚS 212/2010, III. ÚS 185/2010 or I. ÚS 407/2010).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

20 . The applicant s complained that the domestic courts had failed to address all their arguments and had dismissed their claim a rbitrar ily , in disregard of the practice in other similar cases . They alleged a breach of Article 6 § 1 of the Convention , which in its relevant part reads as follows:

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

21 . The Government contested that argument.

A. Admissibility

22 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

23 . The applicant s maintained that the ir right to a fair hearing by a tribunal had been breached . Domestic courts ’ p ractice on the point in issue had varied, and t he Supreme Court had granted similar claims in different proceedings. Such situation was contrary to the principle of legal certainty.

24 . The Government admitted that the practice of domestic courts on the point in issue had varied at the relevant time. However, t he view had prevailed that land expropriated under Ordinance 15/1959 could not be restored under Law no. 503/2003 . The two judgments to the contrary on which the applicants relied were exceptional at that time.

25 . A change in the practice, including that of the Constitutional Court , was introduced by judgments of that cou rt delivered after mid-2010 . That change was to be considered the result of the gradual development of t he case-law and elimination of lacunae in the relevant l aw , the provisions of which did not explicitly refer to cases where property had been taken under Ordinance 15/1959.

26 . The Government concluded that in the applicants ’ case the principle of legal certainty had not been breached , as their claim for restitution had been dismissed in accordance with the practice prevailing at the relevant time.

27 . The Court reiterates that it is not its role to question the interpretation of domestic law by the national courts. Similarly, it is not in principle its function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts (see Nejdet Åžahin and Perihan Åžahin v. Turkey [GC], no. 13279/05 , §§ 49-50, 20 October 2011, and the other authorities cited therein). However, profound and long-standing variations in the practice of the highest domestic court may in itself be contrary to the principle of legal certainty, a principle which is implied in the Convention and which constitutes one of the basic elements of the rule of law (see Beian v. Romania (no. 1) , no. 30658/05, §§ 37-39, ECHR 2007 ‑ V (extracts)).

28 . The Court further 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 this duty to give reasons applies may vary according to the nature of the decision (see Ruiz Torija v. Spain , 9 December 1994, § 29 , Series A no. 303 ‑ A ).

29 . In the present case it is not disputed between the parties that at the relevant time the Supreme Court delivered judgments in which it expressed contradictory views on similar cases, namely as regards the restitution of property under Law no. 503/2003 , where such property had been expropriated under Ordinance 15/1959 .

30 . In their constitutional complaint the applicants pointed to that fact with reference to the Supreme Court ’ s judgment 3S žoKS 130/2005 of 9 June 2006 . In its decision of 25 October 2007 the Constitutional Court dismissed their complaint without addressing that argument.

31 . However, in its judgment on a different case delivered subsequently, the Constitutional Court found , with reference to the Supreme Court judgments 3S žoKS 130/2005 of 9 June 2006 and 6 S žo 240/2008 of 14 October 2009 , that variations in practice on the part of the Supreme Court when determining whether expropriation of land under Ordinance 15/1959 fell under Law no. 503/2003 ran contrary to the principle of legal certainty.

32 . Although it has not been the role of the Constitutional Court to review the case-law of the Supreme Court as such, a constitutional complaint provided, as shown by judgment IV. ÚS 209/2010 of 16 September 2010 , a means for overcoming the adverse effects on a person ’ s constitutional rights which inconsistency in Supreme Court practice could exert .

33 . The Court has noted that the conclusion which the Constitutional Court reached in judgment IV. ÚS 209/2010 was based on the same argument on which the applicants in the present case had relied in their constitutional complaint . By failing to address th e applicants ’ argument about inconsistency in the Supreme Court ’ s practice, which constituted a substantial element of the case before it, the Constitutional Court acted contrary to the applicants ’ right to a fair hea ring as guaranteed by Article 6 § 1.

34 . In view of the above conclusion, the Court considers that it is not required to examine whether there has also been a breach of that provision on account of the conflicting decisions of the Supreme Court on the matter in issue.

35 . There has accordingly been a violation of Article 6 § 1 of the Convention.

II . ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL N o . 1

36 . The applicant s complained that the real property in issue had not been restored to them. They relied on 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.”

37 . The Government contested that argument.

38 . T he Court reiterates that Article 1 of Protocol No. 1 does not guarantee the right to acquire property , and that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his or her “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obt aining effective enjoyment of a property right (for a recapitulation of the relevant principles and further references see, for example, Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 ‑ IX).

39 . In the present case the applicants claim ed restitution of real property which had been expropriated prior to the entry into force of the Convention in respect of Slovakia. Deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of “deprivation of a right” (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII, with further references).

40 . T he domestic authorities dismissed the applicants ’ claim as falling outside the relevant law. D ue to its subsidiary role in the protection of human rights the Court cannot speculate as to whether the applicants met all statutory requirements for restitution of the property and whether the property would be liable to restitution had the proceedings concerning their claim been in compliance with Article 6 of the Convention. In these circumstances, the Court does not find i t established that the contested decision related to the applicant ’ s “possessions” within the meaning of Article 1 of Protocol No. 1.

41 . It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

42 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

43 . The applicant s claimed 6,000 euros (EUR) in respect of pecuniary damage. That sum comprised EUR 3,000 corresponding to the value of the land and EUR 3,000 corresponding to the rent for which the land could have been leased sine 1992.

44 . The Government contested that claim.

45 . N oting that in the present case an award of just satisfaction can only be based on the fact that the applicants did not have the benefit of the a fair hearing as guaranteed by Article 6 § 1 of the Convention, the Court considers that it cannot speculate as to the outcome of the proceedings had the position been otherwise. A ccordingly , any causal link between the violation found and the pecuniary damage alleged has not been established and the applicants ’ claim in that respect has to be dismissed.

46 . The Court further notes that t he applicants submitted no claim in respect of non-pecuniary damage.

B. Costs and expenses

47 . The applicant s also claimed EUR 393.14 for costs and expenses incurred before the domestic authorities and the Court.

48 . The Government asked the Court to determine the claim in accordance with its practice.

49 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Having regard to the documents in its possession and the above criteria , the Court considers it reasonable to award the applicants jointly the sum of EUR 3 5 0 covering costs under all heads .

C. Default interest rate

50 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1 . Declares the complaint concerning the alleged breach of Article 6 § 1 admissible and the remainder of the application inadmissible;

2 . Holds that there has been a violation of Article 6 § 1 of the Convention;

3 . Holds

(a) that the respondent State is to pay the applicant s jointly , within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3 5 0 ( three hundred and fifty euros) plus any tax that may be chargeable to the applicant s , in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4 . Dismisses the remainder of the applicant s ’ claim for just satisfaction.

Done in English, and notified in writing on 26 March 2013 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Santiago Quesada Josep Casadevall Registrar President

A ppendi x

List of applicants

1. Mr Martin Vrabec, born in 1940 and residing in Polt ár

2. Ms Elena Račková, born in 1936 and residing in Poltár

3. Ms Ľubica Vrabcová, born in 1948 and residing in Bratislava

4. Ms Ľubica Kolesárová, born in 1977 and residing in Poltár

5. Mr Ján Vrabec, born in 1982 and residing in Poltár