THIRD SECTION

Application no. 8095/11 Peter POPIVČÁK against Slovakia lodged on 26 January 2011

STATEMENT OF FACTS

1. The applicant, Mr Peter Popivčák , is a Slovak national, who was born in 1950 and lives in Košice .

He is represented before the Court by Mr T. Šafárik , a lawyer practising in Košice .

The circumstances of the case

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

2. The applicant is a self-employed entrepreneur. In that capacity, on 25 April 2008, he lodged an action against a commercial joint-stick company producing and distributing heat in a regional capital.

3. The applicant argued that the defendant was the owner of an aboveground heat distribution pipeline that passed through his real property and that, together with its protective zones, the pipeline prevented about 500 square meters of his property from being made any use of.

He submitted that the average yearly rent for land in the area was equivalent to about 3.70 euros (EUR) per square meter. Accordingly, the applicant claimed an order for the payment of the equivalent of some EUR 1,850 for each of the past four years before the introduction of his action, as well as for any subsequent year.

In support of his claims, the applicant invoked inter alia Articles 1 of Protocol No. 1 and 20 §§ 1 and 4 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended), as well as the relevant provisions of the Civil Code (Law no. 40/1964 Coll., as amended) and the 2004 Thermal Energy Sector Act (Law no. 657/2004 Coll., as amended).

4. The applicant also relied on a judgment ( nález ) of the Constitutional Court ( Ústavní soud ) of the Czech Republic , with which Slovakia has similar legal tradition, of 18 November 2003 in a case no. I. ÚS 137/03.

That judgment concerned, inter alia , the application at the current times of the 1957 Electrisation Act (Law no. 79/57 Coll.) (see below), which had been adopted at the time of the Czechoslovak Republic . The Czech Constitutional Court observed an ideological distinction between the “old law”, that is to say that of the “old (communist) regime” prior to November 1989, and the law applicable under a subsequent democratic constitution. This distinction reflected the political and economic changes undergone. While there was a general continuity with the old law, there was a discontinuity with the values of the old regime. Therefore, the interpretation and application of the old rules at the current times had to take due account of the protection of human rights and fundamental freedoms, including the protection of property. The latter consideration was all the more relevant when the beneficiary of an ex lege easement was making use of it in order to obtain economic gain. While the lawfulness of the establishment of an ex lege easement as such was undisputed, where the applicable public-law legislation contained no provisions for compensation in respect of expenses related to the exercise of the easement, the relevant provisions of the private law were to be used as an alternative. Such provisions envisaged compensation in respect of running expenses, which was to be agreed on by those concerned, or to be ordered by a court. A lack of compensation for such expenses would constitute an unjustified enrichment on the part of the beneficiary of the easement.

5. The action was examined and dismissed by the Košice II District Court ( Okresný súd ) on 14 January 2009 and, following the applicant ’ s appeal, by the Košice Regional Court ( Krajský súd ) on 5 May 2010.

6. The courts observed that the heat-distribution facility had been built under a construction permit of 1981; that it had been put in operation in 1987; and that it was located on land which, at that time, had belonged to the (socialist) State. By operation of section 18 of the Governmental Directive no. 80/1957 Coll. (as applicable at the relevant time) on implementation of the 1957 Electrisation Act, the application of that Act was extended to heat-distribution facilities, such as that in the present case.

The 1957 Electrisation Act thus authorised the construction of the facility and, as a matter of principle, no compensation was envisaged. However, had the owners or users of the real property concerned been significantly encumbered in its use, they could have claimed an adequate one-off compensation. The claim had had to be filed within three months of the putting of the installation in use or else it would lapse.

The 1957 Electrisation Act provided for ex lege easements and the subsequent legislation, in particular section 42(2) of the 1998 Energy Act (Law no. 70/1998 Coll.) and section 38(4) of the 2004 Thermal Energy Sector Act, left them intact. None of these pieces of legislation envisaged any compensation for the restrictions inherent in the continued existence of the ex lege easements, other than the one-off compensation at the time of their establishment. The lawmaker was free not to choose to provide for any such compensation because doing so would have the retroactive effect of a new restitution title.

The applicant had acquired his plot in 1993 by way of a purchase from a private seller. It was his responsibility to examine the condition of the property, including the existence of the impugned ex lege easement, and to have it reflected in the purchase price. The contested ex lege easement fell outside the scope of the existing unjustified-enrichment rules, which accordingly were not applicable.

7. On 18 June 2010 the applicant challenged the ordinary courts ’ judgment by way of a complaint under Article 127 of the Constitution before the Constitutional Court ( Ústavný súd ). In substance, he reiterated the above arguments, and alleged a violation of his rights under Articles 6 § 1 of the Convention and 1 of Protocol No. 1. In addition, he submitted that the courts ’ argument concerning the modalities of how he had acquired the property concerned matters of secondary importance and did not answer the problem of principle obtaining in cases such as the present one.

8. On 7 October 2010 the Constitutional Court declared the complaint inadmissible as being manifestly ill ‑ founded.

It reiterated its established case-law, pursuant to which a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure. However, no such procedural issue had been established.

The essence of the applicant ’ s complaint was that there was no law for compensating him for the ex lege easement over his property. However, in contrast to some other jurisdictions, including the Czech Republic , an individual in Slovakia had no power to challenge the compliance of legislation, or the lack of it, with the Constitution. The applicant ’ s argument made in reliance on the case-law of the Constitutional Court of the Czech Republic was therefore without consequence.

The ordinary courts had supported their judgments by adequate reasoning and their conclusions as to the facts and law manifested no signs of arbitrariness or lack of justification.

COMPLAINT

The applicant considers the outcome of the proceedings in his action arbitrary and contrary to his rights under Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

Has there been an interference with the applicants ’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

If so, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy , [GC], no. 22774/93, § 59, ECHR 1999-V)?