Communicated on 3 November 2016

THIRD SECTION

Application no. 4014/12 Peter JARKOVSKÝ against Slovakia lodged on 13 January 2012

STATEMENT OF FACTS

1. The applicant, Mr Peter Jarkovský , is a Slovak national who was born in 1963 and lives in Prešov .

The circumstances of the case

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

1. Background

3. The applicant has thus far brought sixteen applications under the Convention. Their content indicates that he acquired title to numerous plots of land in and around the city of Pre Å¡ov on which buildings and other constructions and facilities had been built prior to the changes of 1989.

4. He argues that the constructions were built without regularisation of the legal relationships concerned and that their owners did not have good title to have them on his land. On that basis, the applicant has claimed financial compensation in numerous sets of domestic proceedings.

5. The present application specifically concerns four plots of land containing roads and footpaths built in the 1970s which now belong to the city of Pre Å¡ov .

6. The applicant bought the plots in 2007 from an individual who, as acknowledged by the courts in 2006, inherited them in 1986.

7. At or around the time of sale, the seller declared in writing to the city of Pre Å¡o v that neither she nor her legal predecessors had ever consented to any construction on the land that she was selling to the applicant. She therefore considered it free from any encumbrances.

2. Compensation claim

8. On 3 December 2008 the applicant brought a claim in the Pre Å¡ov District Court against the city of Pre Å¡ov seeking the equivalent of some 35,000 euros in compensation for what he considered to be unjustified enrichment by the defendant at his expense.

9. At a later stage of the proceedings he submitted that the matter could also fall within the framework of what was known as “unlawful construction” in so far as the roads and footpaths had been built on his land without good title. Under the Civil Co de, one way of resolving such a situation was to create an easement for the benefit of the owner of the construction, with compensation being paid to the owner of the land on which the construction was situated.

10. As to the amount of compensation, the applicant relied on an expert valuation of rent that would otherwise have been payable for using the land in question for the period 24 January to 19 November 2007.

11. On 28 June 2010 the District Court dismissed the claim. It observed that the applicant had failed to substantiate his argument that the situation was to be examined under the rules pertaining to unlawful construction. Accordingly, it was to be examined within the framework of unjustified enrichment. From that perspective, the court observed that by using the land in question the city was satisfying general needs and providing services to the public for which it received no payment. It was doing so at its own expense, without making any profit. The relevant part of the applicant ’ s claim was therefore contra bonos mores and accordingly had to be dismissed.

12. On 14 July 2010 the applicant appealed against the first-instance judgment in the Pre š ov Regional Court, contesting the District Court ’ s factual and legal conclusions. In addition, he argued that the District Court, Regional Court and Constitutional Court had reached a different conclusion consonant with his claim in previous similar cases concerning himself and others.

13. On 13 April 2011 the Regional Court dismissed the appeal and upheld the challenged judgment. It examined the matter in detail, endorsing the District Court ’ s reasoning and adding further reasons why allowing the applicant ’ s claim would be contra bonos mores . However, it provided no answer to the applicant ’ s argument that a different position on the crucial points had been taken by the ordinary courts and the Constitutional Court in the past.

3. Final domestic decision

14. On 16 June 2011 the applicant lodged a constitutional complaint concerning the Regional Court ’ s judgment of 13 April 2011, alleging, inter alia , a violation of his property rights and his right to a fair hearing. In substance, he contested the findings of law and fact by the ordinary courts and pursued a similar line of argument as above.

15. In submissions of 23 August 2011 the applicant amended his complaint by referring to previous Constitutional Court judgments, two of which had been taken in cases involving himself (nos. IV. US 70/11 and IV. US 94/11 of 23 June and 7 July 2011 respectively). In those judgments the Constitutional Court had quashed the ordinary courts ’ judgments dismissing claims by the applicant similar to those advanced in the present case, for reasons similar to those given by the District Court and Regional Court in the present case.

16. On 28 September 2011 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It cited from the contested judgment, concluding that it was free from any constitutionally relevant arbitrariness and irregularities.

In addition, it took the view that it was not its task to deal with a possible divergence of practice by the ordinary courts and thereby to substitute the responsibility of the Supreme Court in a matter of that nature.

Furthermore, the Constitutional Court observed that its own judgments in case nos. IV. US 70/11 and IV. US 94/11 concerned a lack of reasoning in the ordinary courts ’ judgments in situations similar to that obtaining in the case at hand but took no specific position as to those situations. On the contrary, it had specifically held that no particular position on those cases was being taken and that it was up to the ordinary courts in quest ion to reassess them in their entirety. In the Constitutional Court ’ s view, therefore, the judgments were of no relevance to the present case.

17. The Constitutional Court ’ s decision was served on the applicant on 25 October 2011 and was not amenable to appeal.

4. Subsequent harmonisation of the courts ’ practice

18. On 31 August 2012 the applicant wrote to the President of the Regional Court, pointing out that her court had an inconsistent approach as regards compensation for unjustified enrichment by owners of roads situated on someone else ’ s land constructed without good title. In particular, he cited a number of judgments of the District Court, Regional Court and Supreme Court in which claims of a similar nature to his own in the present case had been allowed. He also cited four judgments of the Regional Court in which such claims had been dismissed on similar grounds as in the present case, three of which had been subsequently quashed by the Constitutional Court. On that basis, he requested that the President take measures with a view to harmonising the divergent views.

19. On 4 September 2012 the President of the Regional Court wrote to the applicant, informing him that she saw no reason to take any particular measures.

20. In a judgment dated 11 December 2012 the Regional Court ruled on an appeal brought by the applicant in an unrelated but similar case. The written version of the judgment contains a reference to and endorses an opinion adopted by the Civil Division of the Regional Court on 10 January 2013 with a view to harmonising the existing practice on the matter. According to the view adopted, unjustified enrichment consisted not only of a gain in terms of property by its ben eficiary but also the lack of a loss of property. There were no reasons not to apply that principle to entities of public law which enriched themselves by using someone else ’ s land without good title for the purposes of a road. The owners of such constructions were under a duty to compensate the owners of the land containing those constructions, irrespective of how the owners of the constructions exercised their ownership rights and whether they were making any profit. The amount of compensation was to be determine d on a case-by-case basis. If a municipality owned a road situated on someone else ’ s land and no other arrangements had been made, under a statut e in force from 1 March 2009 an ex lege easement would be established for the benefit of municipality. While it was true that the legislation did not address the issue of compensation, there was no legal obstacle to granting it for such an easement to the owners of the land concerned under the general rules on easements.

COMPLAINTS

21. The applicant complains under Article 6 § 1 of the Convention that the proceedings in his case were unfair in that his claim was dismissed arbitrarily and in violation of the principle of legal certainty. He complains that, without any explanation, the same courts decided his claim differently to other similar cases decided before and after.

22. The applicant also complains under Article 1 of Protocol No. 1 that, owing to the fact that the city of Pre Å¡ov uses his land for roads and footpaths, he is unable to use it himself. He alleges that the courts have arbitrarily denied him any compensation in that respect.

23. Lastly, the applicant complains under Article 13 of the Convention that he has not had an effective remedy at his disposal in relation to the violations alleged above.

QUESTIONS TO THE PARTIES

1. In view of the alleged inconsistency in decisions made concerning the same issue, d id the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, was the principle of legal certainty respected (see, for example, mutatis mutandis , Popov v. Moldova (no. 2), no. 19960/04, §§ 44 ‑ 46, 6 December 2005)?

2. As regards the applicant ’ s alleged inability to make use of his land and lack of any compensation in that respect, has there been an interference with his peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference necessary in terms of that provision?

3. Did the applicant have an effective domestic remedy at his disposal for his complaints under Article 6 of the Convention and Article 1 of Protocol No. 1, as required by Article 13?