Rezoluția CM/ResDH(2013)87 Patru cauze împotriva Republicii Slovace (Urbarska Obec Trencianske Biskupice, Jenisova, Salus și Sefcikova) Executarea hotărârilor Curții Europene a Drepturilor Omului (Cercetarea nr. 74258/01, Hotărârea din 27/11/2007, definitivă la 2/06/2008 și 27/01/2009, definitivă la 27/04/2009 Cerere n 58764/00, Hotărârea din 3/11/2009, definitivă la 3/02/2010 Cerere n 28697/03, Hotărârea din 3/11/2009, definitivă la 3/02/2010 Cerere n 6284/02, Hotărârea din 3/11/2009, definitivă la 3/002/2010) (adoptată de Comitetul de Miniștri la 7 mai 2013, cu ocazia celei de-a 1170-a ședințe a delegaților miniștrilor) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârile definitive care au fost transmise de Curte Comitetului în cauzele de mai sus și încălcările constatate care reamintesc obligația statului pârât, în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum de măsuri generale de prevenire a unor încălcări similare ; Am invitat guvernul statului pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligației Întrucât a examinat bilanțul de acțiune furnizat de guvern indicând măsurile adoptate în vederea executării hotărârilor, inclusiv informațiile furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte (în special în cauza Urbarska Obec Trencianske Biskupice, în temeiul unei hotărâri art. 41) (a se vedea documentul DH-DD(2012) 335E) Având în vedere faptul că au fost adoptate toate măsurile impuse de art. 46 alineatul (1), DECURSĂ că își îndeplinește funcțiile în temeiul articolului 46 alineatul (2) din Convenție în aceste cazuri și DECIDE d . . Acțiune reportată Four cases quiing the compulsory letting of the applicants hand and the subsequent transfer of ownership to their țints (în limba engleză) Introductory cases summary The case of Urbárska Obec Trenčianske Biskupice privitoare la încălcări ale dreptului de a face parte din proprietatea de proprietate a aplicantului, a registered asociation of landowners (violation of Article 1 of Protocol No. 1). Under the comunist regime, the land owned by the predecescers of the members of the applicant asociation was put at the disposal of an agriculal co-operative, which laterranned it to the members of the Union of Gardeners. The owners. Formal right to the land rmained un afected, but they had no possibility of using it. În July 1998, paznicii inițiază consolidarea unei ownership proces cu view to having the ownership of the land transferred to them. The procedeedings were based on the providence of Act 64/1997 Coll., concording to which such land could be acquired by the tinuts using the land without the consimt of the land owner, who was entitled to receive either a different plot of land or pecuniary compensation. As a consecvence, in October 2002, the applicant asociation was of fered land to compensate for theirloss of ownership at a disproportionately low rate (less than 3% of the current market value of the lost land) and, in February 2003, the ownership of the down plots pased formally to the tints. Pending the outcome of the consolidareaprogress, the provision of Act 64/1997 Coll. was applicable and required the required the required to pay rand to the aplicant asociation until the proceseedings were resolved. Under the Act, the ren plata de către cei care țin la aplicant asociation was set at at at at at at per cent of its values and was lower than the real property tax payment in respect of the land. The European Court found that the transfer of ownership of the applicants nu a fost suficient de bun pentru a justifica valoarea substanțială diferită between the real value of the applications hand and that of the land which it obtained in compensation. Thus the effects producted by application of Act 64/1997 failed to obtain a balance between the interests at stake, i.e. moreover, se referă la compulsory letting of the land, the European Court noted that general interesd not justify such a low level of rent which bore no relation to the actual value of land. Thus the compulsory letting of the land on the bazis of the renttal terms set out in the applicable statutory provisioned to a dispropportionate control of use of the applicant The Jenisová, Salus and Šefčiková cases also se referă la încălcări ale dreptului la peaceful enjoyment of depositions of the aplicants due to the compulsory letting of their land and scheduled or intented transfer to țints (violations of Article 1 of Protocol No. 1). Individual Measures Payment of just satisfaction Urbárska Obec Trenčianske Biskupice Pecuniary damage No-pecuniary damage Costs and exposes Total 2000000 000 219 000 Paid on 30/06/2009 Jenisová Pecuniary damage Non-pecuniary damage Costs and expenses Total 000 000 300 10 300 Paid on 29/03/2010 Salus Pecuniary damage Non-pecuniary damage Costs and expenses Total 000 000 17 000 Paid on 29/03/2010 Šefčíková Pecuniary damage Non-pecuniary damage Costs and expensions Total 8 188 000 500 10 688 Paid on 29/03/2010 II. General Measures Legislation In the case of Urbárska Obec Trenčianske Biskupice, the European Court, under Article 46, conchised that the violation arose from the state of the Slovakian legislation, which has afected a number of landowners whose land comes under the regime of Act 64/1997 Coll. Both viols arose from the application of a law to a special category of citizens. The European Court noted that this case is the first of a number that are pandaning before the Court and identified a systematic violation. It therefore suggested that Slovakia should take action to address the violation. Therefore two legislative amendments were adopted at national level. on 8 February 2011, the National Council of the Slovak Republic adopted the amendment of the Act 64/1997 Coll. and the Ministry of Justice of the Slovak Republic adopted the amendment of its Regulation No. 492/2004 Coll. on Determining the General Value of Property. As a result of these general measures, the rental terms for the letting of land in pain allotments is aable to take into account the actual value of the land and the current market conditions and compensation for the transfer of ownersship of land has a reasonable relations to the market value of the property at the time of the transfer (see Annex for more details). Publication The judgments were translated into the Slovak language and in compliment with the existing Practice of publicityshing of all judgments against the Slovak Republic they were publicished in the Judicial Review (Justičná Review) No. 4/2008 and 4/2009 (Urbárska Obec Trenčianske Biskupice, No. 6-7/2008 (Ševčíková) and No. 12/2009 (Salus and Jenisová). Ill. Concluzii of the respondent State State The government considers that the measures adopted have fully remedied the consecvences for the aplicants of the violation of the Convention found by the European Court in these cases, that these measures will prevent similar viols and that the Slovak Republic has thus compliment with its obligations under Article 46§ 1 of the Convention. In Bratislava, 5 March 2012 Marica Pirošiková Agent of the Government of the Slovak Republic before the European Court of Human Rights Information provided by the Government of the Slovak Republic for the purposes of the examination of the case Urbárska Obec Trenčianske Biskupice v. Slovak Republic by the Committee of Ministers of the Council of Europe (General Measures) Introducere On 8 February 2011, National Council of the Slovak Republic adopted an amendment to the Act No. 64/1997 Coll. on the Use of Land in Garden Alllotments and aranjaments of their Ownership as amendad (hereafter the "Act"). In addition, the amendment to the Regulation of the Ministry of Justice of the Slovak Republic No. 492/2004 Coll. on Establishing General Value of Property, which is autentificăd with the Act, came into effect on 1 July 2010. The amendments were submitted to execute the judgment of the European Court of Human Rights in the case of Urbárska Obec Trenčianske Biskupice v. Slovakia of 27 November 2007. They se referă la mainly (i) the change of the manner of determining the general value of lands and (ii) the change of the manner of establishing the general value of leased land. The amendments schimba calea de setting the annual rate of the lease for the use of land and also the way of determining financial compensation for plots of land situated in allotments. In addition to the above, the character of land provided in compensation for plots of land situated in allotments is more precisely defined. The aim of the amendments was to enforce general measures at domestic level, in order (i) to remove any obstacol to the lease of lase of land in garden allotments under conditions at real price of the land and the current market conditions in the location send and (ii) to elminat all all to the transfer of or compensation for ownership rights raported to the market price of the property on the day of transfer. II. Amendamente la Actul II. a measures referent the letting of land in pain allotments on renttal terms which take account of the actual value of the land and current market conditions in the area vised According to Article 4 § 1 of the Act, the amount of annual rent for the use of plots of land upon lease pursuant to Article 3, shall be determined by a special reglementation This specification is the Regulation of the Ministry of Justice of the Slovak Republic No. 492/2004 Coll. on Establishing General Value of Property as amendated. This regulation determines the Registration value of the Land. The Slovak law does not use the term According to Section 2 of the regulation, the general value of the property represents a final obiectivified value of the real property (Obiectiv represents an expert assessment of the general value of the property in the light of the tehnical state, influence, economic influences and other special factors), which is, concording to expert assessment, the mort likely price of the assessed property on the day of assessment at at a given place and time, which the property should reach on the market in the circumstances of free competition, fair, when both buyer as as as duly informad and selerst the price is not afected by false motive; the valued added tax is geneally inclusded. According to Annex 3 to the regulation, the general value of the real property is an obiectivied value of real property and cladiri, which represents, concording to the expert assessment, their most likely price on the day of assessment at at a given place and time, which they should reach on the market in circumstances of free competition and fair sair murdar, when both buyer and seller as as as as as informed and vigilent and provided the price is not influented by false motiv. The general value shall be established by applying the following methods: (i) comparative method; (ii) combinad method (to be used in case of cladiri from which one can make a profits by renting them); (iii) yeld method (to be used in case of lands which areable to obtain the yeld); and (iv) method of pozitional differentiation. Când aplicația comparativă metod, valoarea generală a realului property este stabilită prin comparație cu price of other, comparabil etalates in the given area. It is necessary to use as a bazis for the comparation the certificates of transfer or disposal of at least three real estates (contract of purchase etc) or the offers of estate agencies, and the comparation is made in terms of the economic factors (date of the transfer, method of the transfer, method of the payment, etc), pozitional factors (place, locality, atractiveness etc.) and structural and fizical factorrs (infrastructuri and a possibility of husility development in case of building sites, land quality and quality of planting of planting in case of other lands etc.). The yeld method is based on the calculation of capitalizare of the exhaustible resources within a limited period of time. Când aplication the metod of pozitional differentiation, the general value of the real property is established on the bazis of the evaluation of individual factors which can afection the price of real estate. The following factors are usually taken into account: real estate market and purchasing power of the population; inchirieri of the real property in the municipality; current state of the real property; type and uz of the real property; infrastructuri de aranjamente de the property (adequacy of the underground services in the neighbourhood of the real property and a possibility of directy reconversing the property to the underground services in the neighourhood of the real property; transport in the neighbourhood of the real property); transport in the realhood of the real property; proiectation of the real property; apporting of the reality; apporting of the reality; apporting of the cladition; apportation of the reality; apporting of the cladition; avation of reality; apportation of artement; apportation of the apportation; apportation; in cont; in cont cont cont cont cont cont cont contment of the reperation of artement; in contment; in contment of the neementing the neement; in contement of the neverement; in quament of the quament; parament; parament; parament; paracyment; quament; quament; quament; quament; quament; quament; quament; quament; quament It is clear from the above that the methods for determining As to the ent for land in garden allotments before 1 April 2011 (i.e before the Act became efectiv) and considering the obligation of domestic authorities under Article 154c of the Constitution to preferentially application the Convention for the Protection of Human Rights and Fundamental Freedoms as interpreted by the judgment Urbárska Obec Trenčianske Biskupice v. Slovakia, individuals may claim before the domestic scurts the definition of the amount of ent taking in account the real price of the land and the current market conditions in the given location. Reference should be made to the decision of the Supreme Court of the Slovak Republic, File No. 6Sžo/400/2009 of 26 October 2010, quashing the relevant judgment of the Prešov Regional Court on a matter refereng the approval of a project of land aranjaments for the settlement of ownership of land in garden allotments. In its decision, the Supreme Court pointed to the judgment of the European Court of Human Rights in the case of Urbárska Obec Trenčianske Biskupice v. Slovakia and the directeffect of the Convention in the Slovak legislation. The Supreme Court informated to the Regional Court that when examining the matter it failed to take into account the relevant case law of European Court of Human Rights, pointing out that no requirements of general interests were strong enough to scuza the low amount of compensation for land; included the low rate of ren. II.b amount which Bears a reasonable relation to the market value of the property at the date of transfer According to Article 7 § 5 of the Act, after the start of the procesing the Circuit Land Office invites The Slovak Land Fund to propos, within reasonable time, substitut of land in the same district, where the majority of the original Land is to be found, along with an expert opinie determining the value thereof. Acest lucru amendment reflects the judgment of the European Court of Human Rights as the substitut land shall be of adequately comparabil value to the plot of land transferred. According to Article 8 § 2, the Circuit Land Office determines the amount of financial compensation for plots of land situated in garden allotments on the bazis of an expert opinie in acordance with the special regulations (Regulation of the Ministry of Justice of the Slovak Republic No. 492/2004 Coll. on Establishing General Value of Property as amendad). Această reflectare amendaments the judgment of the European Court of Human Rights as financial compensation shall responsion to the market value of the land. According to Article 10 § 1, the Circuit Land Office calls the owners to announce within 60 days whether they request substitut lands in the value determined by the expert opinie or financial compensation. II.c Measures to compensate land owners who had land transferred or compensated for at low levels that did not raport to the market value of the property at the time of transfer, under the scheme in place prior to the European Court art. 18a of the Act is followed by Article 18b and 18c providing that the party to the proceseedings the rights of which have been finally decided upon by approval of the project on land consolidarea until 31 March 2011 shall be entitled to financial compensation for plots of land, namely in the amount coresponding to the difference between the financial compensation pursuant to this Act and financial compensation already provided to the party if the provision thereof was requested by 31 decembrie 2011 at the Circuit Land Office; otherwise such right shall be extinguished. Financial compensation shall be paid by the Slovak Land Fund upon the decision of the Circuit Land Office. Moreover, if the project was not finally aprroved by 31 March 2011 or the decision on approval of the project was quashed by a scurt, the Circuit Land Office shall provide an expert aviz to determine the amount of compensation for plots of land pursuant to the Act. The Circuit Land Office shall remember decisions issued in procesedings before 31 March 2011 by fresh decisions delivered acording to this Act. The Act became efectiv as of 1 aprilie 2011.
Résolution CM/ResDH(2013)87
Quatre affaires contre
République slovaque
(Urbarska Obec Trencianske Biskupice, Jenisova, Salus et Sefcikova)
Exécution des arrêts de la Cour européenne des droits de l’homme
(Requête n
o
74258/01, arrêt du 27/11/2007, définitif les 2/06/2008 et 27/01/2009, définitif le 27/04/2009
Requête n
o
58764/00, arrêt du 3/11/2009, définitif le 3/02/2010
Requête n
o
28697/03, arrêt du 3/11/2009, définitif le 3/02/2010
Requête n
o
6284/02, arrêt du 3/11/2009, définitif le 3/02/2010)
(adoptée par le Comité des Ministres le 7 mai 2013,
lors de la 1170e réunion des Délégués des Ministres)
Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «
la Convention
» et «
la Cour
»),
Vu les arrêts définitifs qui ont été transmis par la Cour au Comité dans les affaires ci-dessus et les violations constatées
;
Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe
1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire
:
-
de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par
restitutio in integrum
;
et
-
de mesures générales permettant de prévenir des violations semblables ;
Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée
;
Ayant examiné le bilan d’action fourni par le gouvernement indiquant les mesures adoptées afin d’exécuter les arrêts, y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour
(notamment dans l’affaire Urbarska Obec Trencianske Biskupice, en vertu d’un arrêt article 41) (voir document DH-DD(2012)335E)
;
S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées,
DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans ces affaires et
DECIDE d’en clore l’examen.
Action report
Four cases concerning the compulsory letting of the applicants’ land and
the subsequent transfer of ownership to their tenants
(Anglais seulement)
Introductory cases summary
The case of Urbárska Obec Trenčianske Biskupice concerns violations of the right to the peaceful enjoyment of possessions of the applicant, a registered association of landowners (violation of Article
1 of Protocol No.
1).
Under the communist regime, the land owned by the predecessors of the members of the applicant association was put at the disposal of an agricultural co-operative, which later rented it to the members of the Union of Gardeners. The owners’ formal right to the land remained unaffected, but they had no possibility of using it.
In July 1998, the gardeners initiated consolidation of ownership proceedings with the view to having the ownership of the land transferred to them. The proceedings were based on the provisions of Act
64/1997 Coll., according to which such land could be acquired by the tenants using the land without the consent of the land owner, who was entitled to receive either a different plot of land or pecuniary compensation. As a consequence, in October 2002, the applicant association was offered land to compensate for their loss of ownership at a disproportionately low rate (less than 3% of the current market value of the lost land) and, in February 2003, the ownership of the relevant plots passed formally to the tenants. Pending the outcome of the consolidation proceedings, the provisions of Act 64/1997 Coll. was applicable and required the tenants to pay rent to the applicant association until the proceedings were resolved. Under the Act, the rent payable by the tenants to the applicant association was set at ten per cent of its value and was lower than the real property tax payable in respect of the land.
The European Court found that the transfer of ownership of the applicants’ land to the tenants amounted to a disproportionate deprivation of possessions. In the European Court’s opinion, the public interest in pursuing proceedings under Act 64/1997 Coll. was not sufficiently broad and compelling to justify the substantial difference between the real value of the applicant’s land and that of the land which it obtained in compensation. Thus the effects produced by application of Act 64/1997 failed to obtain a fair balance between the interests at stake, i.e. those of the individual gardeners using the land in garden allotments and those of the owners. Moreover, concerning the compulsory letting of the land, the European Court noted that the general interest did not justify such a low level of rent which bore no relation to the actual value of land. Thus the compulsory letting of the land on the basis of the rental terms set out in the applicable statutory provisions amounted to a disproportionate control of use of the applicant’s property.
The Jenisová, Salus and Šefčiková cases also concern violations of the right to the peaceful enjoyment of possessions of the applicants due to the compulsory letting of their land and scheduled or envisaged transfer to tenants (violations of Article 1 of Protocol No. 1).
I.
Individual measures
Payment of just satisfaction
Urbárska Obec Trenčianske Biskupice
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
200
000
7
000
12
000
219 000
Paid on 30/06/2009
Jenisová
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
9
000
1
000
300
10 300
Paid on 29/03/2010
Salus
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
15
000
2
000
-
17 000
Paid on 29/03/2010
Šefčíková
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
8 188
2
000
500
10 688
Paid on 29/03/2010
II.
General measures
a.
Legislation
In the case of Urbárska Obec Trenčianske Biskupice, the European Court, under Article 46, concluded that the violation arose from the state of the Slovakian legislation, which has affected a number of landowners whose land comes under the regime of Act 64/1997 Coll. Both violations arose from the application of a law to a specific category of citizens. The European Court noted that this case is the first of a number that are pending before the Court and identified a systematic violation. It therefore suggested that Slovakia should take action to address the violation. Therefore two legislative amendments were adopted at national level. On 8 February 2011, the National Council of the Slovak Republic adopted the amendment of the Act 64/1997 Coll. and the Ministry of Justice of the Slovak Republic adopted the amendment of its Regulation No.
492/2004 Coll. on Determining the General Value of Property. As a result of these general measures, the rental terms for the letting of land in garden allotments is able to take into account the actual value of the land and the current market conditions and compensation for the transfer of ownership of land has a reasonable relation to the market value of the property at the time of the transfer (see Annex for more details).
b.
Publication
The judgments were translated into the Slovak language and in compliance with the existing practice of publishing of all judgments against the Slovak Republic they were published in the Judicial Revue (Justičná Revue) No. 4/2008 and 4/2009 (Urbárska Obec Trenčianske Biskupice, No. 6-7/2008 (Ševčíková) and No.
12/2009 (Salus and Jenisová).
Ill.
Conclusions of the respondent State
The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that the Slovak Republic has thus complied with its obligations under Article 46 § 1 of the Convention.
In Bratislava, 5 March 2012
Marica Pirošiková
Agent of the Government
of the Slovak Republic
before the European Court of Human Rights
Information provided by the Government of the Slovak Republic
for the purposes of the examination of the case Urbárska Obec Trenčianske Biskupice
v. Slovak Republic by the Committee of Ministers of the Council of Europe
(General measures)
I.
Introduction
On 8 February 2011, the National Council of the Slovak Republic adopted an amendment to the Act
No. 64/1997 Coll. on the Use of Land in Garden Allotments and Arrangements of their Ownership as amended (hereafter the "Act"). In addition, the amendment to the Regulation of the Ministry of Justice of the Slovak Republic No. 492/2004 Coll. on Establishing General Value of Property, which is connected with the Act, came into effect on 1 July 2010.
The amendments were submitted to execute the judgment of the European Court of Human Rights in the case of Urbárska Obec Trenčianske Biskupice v. Slovakia of 27 November 2007. They concern mainly (i) the change of the manner of determining the general value of lands and (ii) the change of the manner of establishing the general value of leased land. The amendments change the way of setting the annual rate of the lease for the use of land and also the way of determining financial compensation for plots of land situated in allotments. In addition to the above, the character of land provided in compensation for plots of land situated in allotments is more precisely defined.
The aim of the amendments was to enforce general measures at domestic level, in order (i) to remove any obstacles to the lease of land in garden allotments under conditions at real price of the land and the current market conditions in the location concerned and (ii) to eliminate all obstacles to the transfer of or compensation for ownership rights related to the market price of the property on the day of transfer.
II.
Amendments to the Act
measures concerning the letting of land in garden allotments on rental terms which take account of the actual value of the land and current market conditions in the area concerned
According to Article 4 § 1 of the Act, the amount of annual rent for the use of plots of land upon lease pursuant to Article 3, shall be determined by a specific regulation
This specific regulation is the Regulation of the Ministry of Justice of the Slovak Republic No. 492/2004 Coll. on Establishing General Value of Property as amended. This regulation determines the market value of the land. The Slovak law does not use the term “market value” but the term “general value”. According to Section 2 of the regulation, the general value of the property represents a final objectified value of the real property (objectification represents an expert assessment of the general value of the property in the light of the technical state, market influence, economic influences and other specific factors), which is, according to expert assessment, the most likely price of the assessed property on the day of assessment at a given place and time, which the property should reach on the market in the circumstances of free competition, fair sale, when both buyer and seller act as duly informed and vigilant and provided the price is not affected by false motive; the value added tax is generally included.
According to Annex 3 to the regulation, the general value of the real property is an objectified value of real property and buildings, which represents, according to the expert assessment, their most likely price on the day of assessment at a given place and time, which they should reach on the market in circumstances of free competition and fair sale, when both buyer and seller act as duly informed and vigilant and provided the price is not affected by false motive. The general value shall be established by applying the following methods: (i) comparative method; (ii) combined method (to be used in case of buildings from which one can make a profit by renting them); (iii) yield method (to be used in case of lands which are able to obtain the yield); and (iv) method of positional differentiation.
When applying the comparative method, the general value of the real property is determined by being compared to the prices of other, comparable real estates in the given area. It is necessary to use as a basis for the comparison the certificates of transfer or disposal of at least three real estates (contract of purchase, etc) or the offers of estate agencies, and the comparison is made in terms of the economic factors (date of the transfer, method of the transfer, method of the payment, etc), positional factors (place, locality, attractiveness, etc.) and structural and physical factors (infrastructures and a possibility of housing development in case of building sites, land quality and quality of planting in case of other lands, etc.).
The yield method is based on the calculation of capitalisation of the exhaustible resources within a limited period of time. When applying the method of positional differentiation, the general value of the real property is established on the basis of the evaluation of individual factors which can affect the price of real estate. The following factors are usually taken into account: real estate market and purchasing power of the population; location of the real property in the municipality; current state of the real property; type and utilisation of the real property; infrastructures arrangements of the property (adequacy of the underground services in the neighbourhood of the real property and a possibility of directly connecting the property to the underground services in the neighbourhood of the real property through one’s own or municipal lands); transport in the neighbourhood of the real property; prevailing housing development in the neighbourhood of the real property; facilities of the real property; working opportunities of the population; composition of the population in the place of the construction; orientation of the real property towards the cardinal points; configuration of the terrain, civil facilities, natural area in the vicinity of the construction; quality of the environment in the vicinity of the real property; possibility of introducing changes in the built-up area (urban development); possibilities of further expansion, making profit from the real estate; opinion of the expert; and other factors such as prospective plans of the use, natural reservations, building barriers, easements, etc.
It is clear from the above that the methods for determining “the general value” of the real property take into account all factors which are relevant for “the market value” of the property.
As to the rent for land in garden allotments before 1 April 2011 (i.e before the Act became effective) and considering the obligation of domestic authorities under Article 154c of the Constitution to preferentially apply the Convention for the Protection of Human Rights and Fundamental Freedoms as interpreted by the judgment Urbárska Obec Trenčianske Biskupice v. Slovakia, individuals may claim before the domestic courts the determination of the amount of rent taking in account the real price of the land and the current market conditions in the given location. Reference should be made to the decision of the Supreme Court of the Slovak Republic, File No. 6Sžo/400/2009 of 26 October 2010, quashing the relevant judgment of the Prešov Regional Court on a matter concerning the approval of a project of land arrangements for the settlement of ownership of land in garden allotments. In its decision, the Supreme Court pointed to the judgment of the European Court of Human Rights in the case of Urbárska Obec Trenčianske Biskupice v. Slovakia and the direct effect of the Convention in the Slovak legislation. The Supreme Court indicated to the Regional Court that when examining the matter it failed to take into account the relevant case law of European Court of Human Rights, pointing out that no requirements of general interests were strong enough to excuse the low amount of compensation for land; including the low rate of rent.
II.b
measures concerning the award of compensation for the transfer of ownership of such land in an amount which bears a reasonable relation to the market value of the property at the date of transfer
According to Article 7 § 5 of the Act, after the commencement of the proceedings the Circuit Land Office invites The Slovak Land Fund to propose, within reasonable time, substitute plots of land in the same district, where the majority of the original land is to be found, along with an expert opinion determining the value thereof. This amendment reflects the judgment of the European Court of Human Rights as the substitute land shall be of adequately comparable value to the plot of land transferred.
According to Article 8 § 2, the Circuit Land Office determines the amount of financial compensation for plots of land situated in garden allotments on the basis of an expert opinion in accordance with the specific regulations (Regulation of the Ministry of Justice of the Slovak Republic No. 492/2004 Coll. on Establishing General Value of Property as amended). This amendment reflects the judgment of the European Court of Human Rights as the financial compensation shall respond to the market value of the land.
According to Article 10 § 1, the Circuit Land Office calls the owners to announce within 60 days whether they request substitute lands in the value determined by the expert opinion or financial compensation.
II.c
Measures to compensate land owners who had land transferred or compensated for at low levels that did not relate to the market value of the property at the time of transfer, under the scheme in place prior to the European Court’s judgment
Article 18a of the Act is followed by Article 18b and 18c providing that the party to the proceedings the rights of which have been finally decided upon by approval of the project on land consolidation until 31 March 2011 shall be entitled to financial compensation for plots of land, namely in the amount corresponding to the difference between the financial compensation pursuant to this Act and financial compensation already provided to the party if the provision thereof was requested by 31 December 2011 at the Circuit Land Office; otherwise such right shall be extinguished. Financial compensation shall be paid by the Slovak Land Fund upon the decision of the Circuit Land Office.
Moreover, if the project was not finally approved by 31 March 2011 or the decision on approval of the project was quashed by a court, the Circuit Land Office shall provide an expert opinion to determine the amount of compensation for plots of land pursuant to the Act. The Circuit Land Office shall replace decisions issued in proceedings before 31 March 2011 by fresh decisions delivered according to this Act.
The Act became effective as of 1 April 2011.