THIRD SECTION

Application no. 49103/09 Zuzana PETROV Á and Ondrej VALO against Slovakia lodged on 2 September 2009

STATEMENT OF FACTS

1. The applicants, Ms Zuzana Petrová and Mr Ondrej Valo , are Slovak and nationals, who were born in 1971 and 1967 respectively, and live in Košice .

They are represented before the Court by Mr I. Šafranko , a lawyer practising in Svidník .

The circumstances of the case

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

1. Background

2. The applicants ’ grandmother owned a plot of land situated in the built-up area of a regional capital. The plot appears to be a strip, which is on both sides skirted by plots on which the neighbours have their houses.

3. In the 1950s or 1960s, when the plot was de facto occupied by a socialist agricultural co-operative, two high-voltage pylons were erected on it, subject to the provisions of the 1957 Electrisation Act (Law no. 79/57 Coll.). The applicant ’ s grandmother was neither invited to take part in nor informed of the administrative proceedings concerning the construction of the electric main, of which the pylons were a part. She did not receive any compensation.

4. At an unknown later time, the applicants acquired title to their grandmother ’ s plot. In their submission, were there no electric installations on it, the value of the plot would be in the area of 200,000 euros (EUR). However, with the installations, the plot can neither be sold nor be made another use of. Nevertheless, being its owners, the applicants are liable to pay real estate tax in respect of it and to maintain it so that the use of the adjacent plots is not disturbed.

2. Action

5. On 5 February 2003 the applicants brought an action against the local electricity ‑ supply company but later redirected it against the local electricity ‑ distribution company. The subject matter of the action was restated into, eventually, aiming for an order for the payment of an amount of money in compensation for the use of the surface built up by the pylons. For each square meter and year, they cla imed the equivalent of some EUR 1.20. The applicants relied inter alia on Articles 6 § 1 of the Convention and 1 of Protocol No. 1 and argued that while the impugned pylons served the defendant to make profit, they not only had to endure the presence of the pylons but were also incurring costs related to the plot ’ s maintenance.

6. The action was examined and dismissed at two levels of the ordinary jurisdiction, by the Košice I District Court ( Okresný súd ) on 13 Decemb e r 2007 and, following the applicants ’ appeal, by the Košice Regional Court ( Krajský súd ) on 11 December 2008.

7. The courts applied section 22(2) of the 1957 Electrisation Act, which was still in application by virtue of section 42(2) of the 1998 Energy Act (Law no. 70/1998 Coll.) and section 69(10) of the 2004 Energy Act (Law no. 656/2004 Coll.). The 1957 Electrisation Act had authorised the construction of electric main on real property of any party, including the establishment of support points, such as the pylons on the applicants ’ land.

As a matter of principle, no compensation was envisaged. However, if the owners or users of the real property concerned were significantly encumbered in its use, they could claim an adequate one-off compensation. The claim had to be filed within three months of the putting of the installation in use or else it would lapse.

The applicable legislation provided for an ex lege easement, which was a sui generis notion of the public law. It was accordingly not possible to advance a compensation claim on the basis of private law. The easement in question was always to be governed by the legal rules applicable at the time its establishment. The subsequent legislation did not envisage any compensation other than the one-off compensation under the 1957 Electrisation Act. In support of these views, the courts also relied on the decision of the Constitutional Court ( Ústavný súd ) of 28 September 2005 (see below).

In the applicants ’ case, at the relevant time, no compensation had been claimed and, consequently, obtained. The claim of the applicants ’ grandmother had thus lapsed, there had not been any legal basis for its renewal, and neither was there any basis for any new claim of the applicants ’ own.

The right to a fair trial did not imply a right to a successful outcome of the proceedings, the ex lege easement served public interest and it did not infringe on the applicants ’ property rights.

3. Constitutional complaint

8. On 9 March 2009 the applicants lodged a complaint with the Constitutional Court ( Ústavný súd ) under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). They advanced similar arguments as above and alleged a violation of their rights under Article 1 of Protocol No. 1.

In addition, the applicants submitted that they respected the public interest in having the installation and that the essential problem was the complete lack of any compensation, which they considered disproportionate. In that respect, the ordinary courts had failed to give any answer to their argument that their grandmother could not have claimed any compensation since at the time of the establishment of the easement she had de facto not been using it and any compensation could only have been claimed by those who had been significantly encumbered in the use of their property.

Furthermore, the applicants relied on the judgments ( nález ) of the Constitutional Court ( Ústavní soud ) of the Czech Republic , with which Slovakia has similar legal tradition, in cases nos. Pl. ÚS 25/04 , of 25 January 2005, and I. ÚS 137/03, of 18 November 2003. These judgments concerned, inter alia , the application of the above-mentioned compensation regime under the 1957 Electrisation Act at the current times. In these judgments, an ideological distinction was observed 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 of such expenses would constitute an unjustified enrichment on the part of the beneficiary of the easement.

9. On 14 May 2009 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 claim had been advanced and, in any event, no procedural issue had been established. The ordinary courts ’ judgments were supported by adequate reasoning and their conclusions as to the facts and law manifested no signs of arbitrariness or lack of justification.

COMPLAINTS

10. The applicants complain under Article 6 § 1 of the Convention that their action was arbitrarily dismissed although a violation of human rights was found in the Czech Republic on comparable facts.

11. The applicants also complain under Article 1 of Protocol No. 1 that they have to endure a commercial electricity-distribution company to use their land free of charge, in which the State is complicit; that they have to pay taxes and incur expenses in connection with the ownership and maintenance of that land; and that the State has failed to enact any rules allowing their grandmother and themselves to obtain any compensation, all of which the applicants consider disproportionate.

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 applicants (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?