THIRD SECTION

Application no. 73020/10 Mária ŠIDLOVSKÁ against Slovakia lodged on 3 December 2010

STATEMENT OF FACTS

1. The applicant, Ms Mária Šidlovská , is a Slovak national, who was born in 1969 and lives in Banská Bystrica .

The circumstances of the case

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

2. Since 1942, the applicant ’ s father owned 1,550 square meters of land, classified in the Land Register as a “garden”, and situated in what is at present a built-up area of a re gional capital.

3. Under a building permit of 1952 an electricity-distribution facility was built on an adjacent plot and, subsequently, an electricity main was established over the plot belonging to the applicant ’ s father with three high ‑ voltage pylons erected on it. According to the applicant, due to practical realities at that time, it was out of question for her father to oppose the project and to claim any compensation.

4. According to the applicant, through the electric installations mentioned above, the property in question has been rendered worthless although the normal value of land in that area is some 50 euros (EUR) per square meter.

5. On 5 November 2004 the applicant ’ s father donated the plot to the applicant. The donation took legal effect on registration in the Land Register on 13 December 2004.

6. On 25 April 2005 the applicant ’ s father lodged an action against the local electricity company with the Banská Bystrica District Court ( Okresný súd ). He sought an order for payment of the equivalent of some EUR 15,500 by way of compensation in respect of limitations on his ownership rights through the above-mentioned installations in the period from 25 April 2005, that is to say three years before the introduction of the action, until 13 December 2004, that is to say the effective date of the above-mentioned donation. The amount was calculated on the basis of the equivalent of some EUR 3.8 per square meter and year. The applicant ’ s father argued inter alia that the defendant was a commercial company and was using the installations in order to generate profit.

7. On 14 July 2005 the applicant ’ s father died and the applicant, as his universal heir, entered the proceedings in his stead. Among other things, she relied on Article 11 § 4 of Charter of Fundamental Rights and Freedoms (Constitutional Law no. 23/1991 Coll.) ( Listina základných práv a slobôd – “the Charter”), providing that expropriation or forcible restrictions on ownership rights are only possible in the public interest, on the basis of the law and for compensation.

8. On 11 June 2007 the District Court granted the action. It observed that according to the defendant and an expert witness a relocation of the electric main was technically possible and that, according to the former, its cost would amount to the equivalent of some EUR 160,300, while according to the latter the estimated cost would be equivalent to some EUR 43,000.

The relocation necessitated the laying of new conductors, which was not unreasonable because the existing ones had exceeded their service life.

To the extent that the defendant had argued that the relocation costs were to be born by the applicant because it was she who had requested it, the District Court held that there was no basis in law for such a view. In that respect, it relied on Article 11 § 1 of the Charter, Articles 3, 123, 124 and 128 of the Civil Code (Law no. 40/1964 Coll., as amended), section 22(2) of the 1957 Electrisation Act (Law no. 79/57 Coll.), and sections 38 and 69(10) of the 2004 Energy Act (Law no. 656/2004 Coll.).

In so far as section 22(2) of the 1957 Electrisation Act envisaged a one ‑ off compensation, to be applied for within three months of the putting of the installation in use, the District Court distinguished that compensation, which concerned the establishment of the ex lege easement, and compensation in respect of subsequent limitations on property rights, as claimed by the applicant.

Section 69(10) of the 2004 Energy Act pursuant to which easements established under the precedent legislation remain intact merely concerned the existence of such easements but contained no limitation or exclusion of compensation.

The defendant had failed to show that it could not have served the public interest in ensuring electricity supply by other means and the means used interfered with the applicant ’ s property rights beyond what was strictly necessary. There was thus no balance between the public interest pursued by the defendant and the public interest in ensuring respect for property rights relied on by the applicant.

The amount of compensation was established with reference to an assessment provided by a real estate agency.

9. Following the defendant ’ s appeal ( odvolanie ), the Banská Bystrica Regional Court ( Krajský súd ) overturned the first-instance judgment and dismissed the action, on 24 January 2008. The applicant ’ s appeal on points of law ( dovolanie ) was dismissed by the Supreme Court, on 21 December 2009.

10. The Regional Court and the Supreme Court were united in holding that the applicable law, in particular sections 22(2) of the 1957 Electrisation Act and 69(10) of the 2004 Energy Act, provided no basis for allowing the action. As to general principles of law, such as that of respect for human rights and fundamental freedoms, the prohibition of retroactivity did not allow to disregard the three-month time-limit for compensation claims under section sections 22(2) of the 1957 Electrisation Act. The Supreme Court also referred to the Constitutional Court ’ s decision of 28 September 2005 in a case no. PL. ÚS 28/05, pursuant to which section 69(10) of the 2004 Energy Act merely concerned the continued existence of ex lege easements but provided for no renewal of any possibility to claim compensation. Providing for new compensation claims would amount to new restitution claims, which the lawmaker was free under the Constitution (Constitutional Law no. 460/1992 Coll., as amended) not to choose. However, while accepting that the impugned ex lege easement was a sui generis notion of the public law, the Supreme Court held that it also had some characteristics of an easement under private law.

In particular, under Article 151n § 3 of the Civil Code, unless the parties agreed otherwise, the beneficiary of an easement was to contribute towards the costs of the maintenance and preservation of the object of the easement on a pro rata basis. This position was consonant with the judgment ( nález ) of the Constitutional Court of the Czech Republic in the case no. PL. US 25/04. That judgment concerned, inter alia , the application at the current times of the 1957 Electrisation Act, 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.

However, no such claim had been made in the present case.

COMPLAINTS

11. The applicant considers the outcome of the proceedings unfair, arbitrary and, as such, contrary to her rights under Articles 6 § 1 of the Convention and 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)?