THIRD SECTION

Application no. 42812/10 Mária BAŠISTOVÁ and O thers against Slovakia lodged on 1 July 2010

STATEMENT OF FACTS

1. A list of the eleven applicants is set out in the appendix. They are all Slovak nationals and they are all represented by Mr M. Hrouda , a lawyer practicing in Košice . Except for the eighth applicant (according to the numbering in the appendix), who lives in Turňa nad Bodvou , they all live in Košice .

A. The circumstances of the case

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

1. The property and context

2. This application and three others (nos. 18803/10, 48554/10 and 44019/11) concern regularisation of the relationships of ownership and use of real property located in the cadastral area Košice -Sever.

3. Certain land in this area was expropriated in the 1980s by the (then socialist) State and a public sports centre was built on it. This sports centre comprises buildings and various other facilities such as, for example, a tennis court, a grandstand, a water station and pavements.

4. After the post 1989 political, constitutional and legal changes, an amount of litigation took place with a view to resolving various property claims of the original owners (or their legal successors) against the entities owning or operating the sports centre or various parts of it.

5. The land concerned is divided into a number of plots having various owners, who are often linked by family relations and history, and who had the same legal representation in the proceedings mentioned. Their lawsuits followed a similar pattern, but sometimes had varying results, and included the following proceedings.

2. The proceedings

6. The applicants in the present case are all successors in title to a piece of land situated in the above-mentioned area. They acquired their title by way of inheritance from the original owners, who died in 1948 and 1982, respectively.

7. On 5 October 1994 the applicants lodged an action at law, directed against a sports club and aimed at obtaining an order for removal of the constructions.

The principal line of argument was that the expropriation decision of 24 February 1984 was invalid in law, as a result of which the applicants were the lawful owners of the land in question, in particular of a plot no. 10605 (recorded on a sheet no. 1303 in the “old” records), and that the defendant, who was the owner of the constructions built on it, had no lawful title for having them on the applicants ’ land.

8. The action was subsequently amended in 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 in that there were two more defendants, a municipality and a private company.

9. The action was dismissed, at first instance by the Košice I District Court ( Okresný súd ) on 11 August 2008, and - following the applicants ’ appeal - by the Košice Regional Court ( Krajský súd ) on 2 February 2009.

10. In accordance with the applicants ’ claim, the courts found ( i ) that the expropriation of 1984 was legally ineffective on account of procedural flaws, (ii) that the applicants were the owners of the land in question, (iii) that the constructions on it had been built without a valid legal title in so far as the underlying land was concerned, (iv) and that the applicants were entitled to seek redress under general civil law, that is to say Article 135c of the Civil Code (Law no. 40/1964 Coll., as amended), which was not subject to statute of limitation, as opposed to special legislation on restitution, which contained specific time-limits.

11. The courts further held that, for practical reasons, it was out of question to regularise the situation by establishing the applicants as the owners of the constructions and ordering them to pay the current owners financial compensation. Furthermore, in the circumstances, it was likewise not practical to order a physical removal of the constructions in question.

12. However, contrary to the applicants ’ assertions, the courts found that no easement could be established on the land. The bone of contention was the legal nature of the constructions concerned. Unlike in construction law, in civil law these constructions could not be considered as buildings in legal terms. An easement over land could however only be established for the benefit of the owner of a building. In that respect, the courts relied on Article 135c § 3 of the Civil Code (Law no. 40/1964 Coll., as amended). The applicants ’ argument that the buildings and the adjacent facilities belonged to one integrated complex and in reality served a single purpose were dismissed.

13. Observing that the sports centre had always been serving the public, the courts also took into account the “nature and extent of economic prejudice” suffered by the applicants.

14. Lastly, it was held that the applicants had alternative means of asserting their rights by way of an action for a declaratory ruling and an action for compensation in respect of unjustified enrichment.

15. In so far as the applicants had argued that, in a case of other claimants in a similar position partly concerning the same defendant and other land under the same sports centre, the courts had found no obstacle to establishing an easement (see paragraph 19 below in “Relevant domestic law and practice”), their argument has gone unanswered.

3. Final domestic decision

16. On 23 April 2009 the applicants filed a complaint with the Constitutional Court ( Ústavný súd ) ) under Article 127 § 1 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended), to which they added further grounds of complaint on 14 January 2010. They contested the outcome of the proceedings and alleged a violation of their rights under, inter alia , Article 6 § 1 of the Convention (fairness, adequate reasoning) and the constitutional equivalent of Article 1 of Protocol No. 1.

17. On 18 March 2010 the Constitutional Court declared the complaint inadmissible as being manifestly ill ‑ founded. Observing that it was no court of further appeal against decisions of the ordinary courts, it found no constitutionally relevant unfairness, arbitrariness or irregularity in the impugned judgments.

B. Relevant domestic law and practice

18. Article 135c of the Civil Code deals with situations concerning so ‑ called unlawful constructions, that is “buildings” constructed on somebody else ’ s plot without an entitlement to do so.

In respect of such buildings, upon a request of the owner of the plot, the court has the power to order the removal of the building at the costs of the person who construed it (paragraph 1).

However, if the removal of the building is not practical, and subject to consent by the owner of the plot, the court has the power to rule that the title in the building should be transferred to the owner of the plot in return for compensation (paragraph 2).

The court also has the power to regularise the relationships between the owner of the plot and the owner of the building by taking other measures, in particular by establishing an easement, which is necessary for the exercise of the ownership rights in respect of the building, in return for compensation (paragraph 3).

19. In a judgment of 13 March 2002, which became final on 3 May 2002, in case no. 15C 251/94 brought by a different set of claimants, the District Court allowed an action for a ruling to establish an easement for the benefit of the municipality over other lots of land serving the same sports centre as a tennis court and related facilities.

Just like in the applicants ’ case, it was found that the respective expropriation in the 1980s was without any legal effect. The claimants were thus the owners of the land and the defendant had no title to have their facilities on the claimants ’ land. This discrepancy was to be regularised under Article 135c § 3 of the Civil Code by establishing an easement, while the issue of compensation payable for it was to be determined in a separate set of proceedings. It did, by the District Court on 13 December 2006 in case no. 15C 717/02, when an order was issued for financial compensation of the plaintiffs on the basis of an expert assessment.

COMPLAINTS

20. The applicants complain under Article 6 § 1 of the Convention that the proceedings in their action were unfair in that the action was arbitrarily dismissed and in that the courts failed to give any response to the argument that, in another case in an analogous situation, the same District Court had reached a different conclusion. Under the same provision, they also complain that the length of the proceedings in their action was unreasonable.

21. For similar reasons, the applicants also alleged a violation of their rights under Article 1 of Protocol No. 1.

22. The applicants lastly complain under Article 1 of Protocol No. 12 that they have been discriminated against without any acceptable justification in relation to the other claimants, referred to above, and in relation to other real property owners in conceptually similar situations, for whom a special legal regime has been created allowing for the establishment of an easement (e.g. land below highways).

QUESTIONS TO THE PARTIES

1. In view of the alleged discrepancy in decision-making concerning the same issue and the alleged lack of any judicial answer to crucial arguments concerning that discrepancy, did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, was the reasoning of the domestic courts adequate (see, for example, Ruiz Torija v. Spain , 9 December 1994, § 30, Series A no. 303 ‑ A ) and 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. Has there been an interference with the applicants ’ 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?

Appendix