SECOND SECTION

CASE OF SZKÓRITS v. HUNGARY

(Application no. 58171/09)

JUDGMENT

STRASBOURG

16 September 2014

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Szkórits v. Hungary,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Guido Raimondi, President,
	Işıl Karakaş,
	András Sajó,
	Nebojša Vučinić,
	Helen Keller,
	Egidijus Kūris,
	Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 26 August 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 58171/09) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Zsigmond Szkórits (“the applicant”), on 26 October 2009.
2.  The applicant died on 16 March 2012, after he had introduced the application. However, his daughter and sole heir, Ms Dobrilla Szkórits, expressed her wish to pursue the application.
3.  The applicant was represented by Ms Gy. Scheszták, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.
4.  The applicant alleged, in particular, that his right to peaceful enjoyment of his possessions had been violated as a result of the fact that he had been unable to enter into possession of a plot of land allocated to him.
5.  On 17 December 2012 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
6.  The applicant was born in 1929 and lived in Budakalász.
7.  He had a joint title to a plot of land in the value of 4.59 “gold crowns” (aranykorona). The land was, from an unspecified date on, in the possession of, and used by, a Socialist “collective farm”. Following the adoption of Act no. II of 1993 on Land Settlement and Land Distribution Committees, the Pest County Land Registry adopted a plan on the division of such properties. That decision was subsequently upheld by the Bács-Kiskun and Pest County Office of Compensation.
8.  On 15 November 1999 a plot of arable land of 979 square metres, situated in the village of Budakalász, was designated by the Pest County Land Registry for the purpose of privatisation, under lot no. 3305. This measure was approved by the Regional Office for Restitution and Compensation Affairs. On 15 November 1999 the applicant was granted ownership of the plot by the Regional Office of Agriculture. His title to the land was registered on 28 August 2000.
9.  However, he could not enter into possession, because the plot which he had been granted was apparently occupied and being used by the owners of the neighbouring plots.
10.  The applicant brought a trespass claim before the District Notary, asserting that his use had been unjustifiably interfered with. Following the dismissal of his request, he sought judicial review of the decision, bringing a civil action before the Budapest II/III District Court against the neighbours, seeking protection of his possession rights.
11.  While this case was pending, the respondents initiated the correction of the land register maps. In the ‘remapping’ proceedings, the District Land Registry observed that plot no. 3305 did not exist in reality. On appeal, the County Land Registry confirmed this finding, designating a new plot for the applicant, under no. 3305/1, on 21 June 2006. This plot was nonetheless smaller than that originally allocated to the applicant, and was apparently not suitable for farming.
Quite independently of the present dispute, on 16 December 2005 a new, digitally compiled land register was put in place by the Budakalász authorities, with the apparent intention of eliminating the existing inaccuracies.
12.  The applicant’s civil action was stayed for the duration of the remapping proceedings. After the adoption of the County Land Registry’s final decision, the District Court dismissed the action on 15 December 2006, observing that the respondents had not used the applicant’s land unlawfully, as the plot of land registered under plot no. 3305 did not exist in reality. The applicant appealed.
13.  The appeal proceedings appear to have been subsequently suspended since the applicant sought judicial review of the remapping decision. In the course of these administrative court proceedings, it was confirmed by an expert land surveyor that the applicant had originally been granted a plot which had been registered with topographic and editing errors, and that these had been duly corrected in the remapping proceedings. Therefore, the Pest County Regional Court dismissed the applicant’s claim on 13 March 2008. This was confirmed by the Supreme Court on 28 April 2009.
14.  Since in the remapping proceedings the location of the land belonging to the applicant eventually became indisputable and it turned out that this plot was not possessed by any of the respondents, the applicant withdrew his appeal against the first-instance judgment of 15 December 2006.
15.  As a result of the above proceedings, the applicant could finally obtain possession of the land in question ten years after having acquired it, that is, sometime in 2009.
16.  On 28 October 2009 the applicant lodged an official liability action against the District and the County Land Registries. His action was dismissed by the Buda Surroundings High Court on 13 March 2012. The court found that the applicant’s damage had been caused by his own conduct since he had initiated a number of futile proceedings before various authorities.
17.  The applicant appealed; however, the appellate proceedings were suspended on account of his death on 16 March 2012, with a view to the successor’s joining the case. It appears that the proceedings are still pending, that is, remain suspended.
THE LAW
I.  AS TO THE LOCUS STANDI OF MS D.SZKÓRITS
18.  The Court notes at the outset that the applicant died on 16 March 2012, after the lodging of his application. His daughter, 
Ms D. Szkórits, who is also his heir, informed the Court that she wished to pursue his application.
19.  The Court points out that in various cases where applicants have died in the course of the proceedings it has taken into account the wishes of their heirs or close members of their families to pursue the proceedings before the Court (see, for example, E.B. and Others v. Austria, nos.  31913/07, 38357/07, 48098/07, 48777/07 and 48779/07, § 60, 7 November 2013; and Ergezen v. Turkey, no. 73359/10, § 27, 8 April 2014). It sees no reason to reach a different conclusion in the present case and therefore accepts that the applicant’s daughter, Ms D. Szkórits, can pursue the application initially brought by him.
II.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL N	o. 1
20.  The applicant complained that his right to protection of property had been violated in that he could not enter into possession of the land allocated to him in 1999. He relied on Article 13 of the Convention and Article 1 of Protocol No. 1.
21.  The Court considers it appropriate to examine the complaint under Article 1 of Protocol No. 1 alone. This provision reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government contested the applicant’s argument.
A.  Admissibility
22.  The Government raised, in essence, the objection that the complaint was inadmissible since the applicant could not be considered a victim of a breach of the Convention, as the official liability proceedings instituted by the applicant were still pending, and the alleged injury could still be remedied before the domestic courts.
23.  The Court observes that the applicant initiated civil proceedings for the protection of his possession and was subsequently party to the administrative proceedings initiated by his neighbours that aimed at remapping the disputed plot of land. In this respect, the Court recalls that, where several remedies are available, the applicant is not required to pursue more than one (see Karakó v. Hungary, no. 39311/05, § 14), and it is normally that individual’s choice as to which (see, mutatis mutandis, 
Airey v. Ireland, 9 October 1979, § 23, Series A no. 32). Consequently, the Court considers that the applicant cannot be reasonably expected to await the outcome of the liability proceedings before lodging his complaint with the Court. The Court further observes that the applicant has, so far, not been awarded any redress for the violation of his rights under Article 1 of Protocol No. 1. It follows that the applicant has not lost the status of a victim within the meaning of Article 34 § 1 of the Convention. The Government’s objection must therefore be dismissed.
The Court also notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
24.  The applicant argued that he had been registered as the owner of the land continuously from 1999 when it had been allocated to him by the Regional Office of Agriculture and that the domestic courts had refused to grant him protection. As a consequence he could not enter into possession. He claimed that the decision of the Office and the registration of his entitlement in the Land Registry had constituted a property right which had originally been recognised by the authorities.
25.  The Government were of the opinion that the applicant had never become the owner of the plot of land and, consequently, had never been deprived of any “existing possession” within the meaning of Article 1 of Protocol No. 1. They argued that the applicant could not have become the owner of the plot of land by the decision of Regional Office of Agriculture of 1999, since, in such cases, the full title to a property was established only once the legal basis for registration in the land register had been created and possession had been transferred. Thus, in the absence of a full title, there had been no interference with the applicant’s rights under the Convention.
26.  The Court notes that the parties disagree as to whether the applicant had a property interest eligible for protection under Article 1 of Protocol No. 1. Thus the Court is required first to determine the legal position of the applicant (see Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000‑I).
27.  Article 1 of Protocol No. 1 protects “possessions” which can be either “existing possessions” or certain other rights and interests constituting assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. It does not, however, guarantee the right to acquire property (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX).
Furthermore, the concept of “possessions” in the first part of Article 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification of domestic law (see Žáková v. the Czech Republic, no. 2000/09, § 48, 3 October 2013). The fact that the domestic laws of a State do not recognise a particular interest as a “right” or even a “property right” does not necessarily prevent the interest in question, in some circumstances, from being regarded as a “possession” within the meaning of Article 1 of Protocol No. 1 (see Brosset-Triboulet and Others v. France [GC], no. 34078/02, § 71, 29 March 2010).
28.   In the present case, the issue that needs to be examined is whether, in the absence of a transfer of possession, the decision of the Regional Office of Agriculture conferred on the applicant a substantive interest protected by Article 1 of Protocol No. 1.
29.  The Court first notes that the applicant was registered as the owner of plot no. 3305 in the land register as of 30 November 1999. It appears that at the material time the cadastral map was not kept accurately and contained mistakes, including parallel records concerning the same plot of land (see paragraph 11 above). The Court also notes that under domestic law a record in the land register does not by itself constitute ownership but the transfer of possession is also required, at least in scenarios similar to the land distribution from which the applicant was supposed to benefit.
Nonetheless, the applicant continued to be registered as the owner, as endorsed by the rectification of the land registry on 21 June 2006, confirmed by the Supreme Court on 28 April 2009. By this decision of the Land Registry, the registration of the applicant’s ownership changed only in that the plot of land belonging to him was established to be in another location. The Court is therefore satisfied that, as a result, he could reasonably consider himself the owner of the plot designated to him by the Regional Office of Agriculture, despite the fact that he had never entered into possession.
30.  The Court further considers it material that on a number of occasions the applicant appears to have been considered de facto by the authorities as having a proprietary interest in the plot of land, and even as its owner.
31.  In particular, the applicant brought a trespass claim, and in the ensuing administrative court proceedings the Budapest II/III District Court considered that he was the owner of the plot registered under no. 3305, but dismissed his claim for the protection of possession on the ground that he had never been in possession of the property, since it did not exist in reality (see paragraph 12 above).
32.  Moreover, in the course of the administrative proceedings initiated by the applicant’s neighbour for the correction of the land registry maps, the first- and second-instance administrative authorities did not dispute that the applicant’s title to the plot of land existed but found that, due to errors in the land registry, this plot did not exist in reality since it had been incorporated by the neighbouring lands. The authorities resolved this problem by assigning to the applicant another plot of land under a new registration number. In the subsequent judicial review proceedings, the Pest County Regional Court stated that the proceedings did not affect the parties’ property rights but merely rectified the mistakes in the land registry (see paragraph 13 above). According to the decision of the Supreme Court, the administrative decision altered the errors in the land registry by situating the applicant’s property in a different location.
33.  In the Court’s view, these elements combined establish that the applicant had a proprietary interest protected by Article 1 of Protocol No. 1, even if he did not enter into actual possession of the disputed plot of land, as required by the domestic rules specific to this compensation scenario. Indeed, the failure of his attempts to enter possession is the very crux of his complaint before the Court.
In these circumstances, the Court considers that the applicant’ had a legitimate expectation of entering into possession of the plot of land, and thus had an interest constituting a “possession” for the purposes of Article 1 of Protocol No. 1. That provision is therefore applicable to the instant case.
34.  The Court reiterates that Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 61, Series A no. 52).
35.  The essential object of Article 1 of Protocol No. 1 is to protect a person against unjustified interference by the State with the peaceful enjoyment of his or her possessions.
36.  However, by virtue of Article 1 of the Convention, each Contracting Party “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”. The discharge of this general duty may entail positive obligations inherent in ensuring the effective exercise of the rights guaranteed by the Convention. In the context of Article 1 of Protocol No. 1, those positive obligations may require the State to take the measures necessary to protect the right of property (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 96, ECHR 2002-VII, with further references), especially where there is a direct link between the measures an applicant may legitimately expect from the authorities and his effective enjoyment of his possessions (see Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004‑XII).
The boundaries between the State’s positive and negative obligations under Article 1 of Protocol No. 1 do not lend themselves to precise definition (see Broniowski v. Poland (dec.) [GC], no. 31443/96, § 144, ECHR 2002‑X).
37.  In the present case, the applicant’s entitlement to the disputed land was conferred by the decision of the Regional Office of Agriculture on 15 November 1999; however, he was unable to enter into possession until the authorities took steps to remedy the situation by designating a new plot for him on 21 June 2006. During this period the applicant was unable to use, or dispose of, his property.
These circumstances can be examined in terms of an interference falling under the first sentence of the first paragraph of Article 1 of Protocol No. 1 laying down the principle of peaceful enjoyment of property in general terms (see Sabin Popescu v. Romania no. 48102/99, § 80, 2 March 2004). Nonetheless, the applicant’s situation can also be construed as originating in the authorities’ failure to keep a sufficiently accurate land register. The facts of the case, therefore, may well be examined in terms of a hindrance to the effective exercise of the right protected by Article 1 of Protocol No. 1 or in terms of a failure to secure the implementation of that right.
38.  Whether the case is analysed in terms of a positive duty of the State or in terms of interference by a public authority which needs to be justified, the criteria to be applied do not differ in substance. In both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. It also holds true that the aims mentioned in Article 1 of Protocol No. 1 may be of some relevance in assessing whether a fair balance between the demands of the public interest involved and the applicant’s fundamental right of property has been struck. In both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Broniowski, cited above, § 144).
39.  The Court will, therefore, determine – regardless of whether the conduct may be characterised as an interference or as a failure to act, or a combination of both – if the prejudice sustained by the applicant was justifiable in the light of the relevant principles.
40.  The assessment of proportionality requires an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective” (see Beyeler, cited above, § 114). Furthermore, in each case involving an alleged violation of Article 1 of Protocol No. 1, the Court must ascertain whether by reason of the State’s action or inaction the person concerned had to bear a disproportionate burden (see Former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 88-89, ECHR 2000‑XII). That assessment also includes the nature of the interference, the conduct of the applicant and that of the State authorities (see Perdigão v. Portugal [GC], no. 24768/06, § 68, 16 November 2010).
41.  The Court notes the Government’s arguments to the effect that the applicant was responsible, to a certain extent, for his situation, because of lack of diligence in that he initiated proceedings that had no chance of success, but failed to lodge a civil claim for the determination of property rights.
42.  The Court sees no reason to call into question the applicant’s good faith in considering himself as the rightful owner, although the land was occupied by neighbours. There is furthermore no element to suggest that he must have known that the land register was inaccurate and the claims introduced by him were bound to fail. In these circumstances, the Court is satisfied that the applicant did not show a lack of diligence by not pursuing the most appropriate remedial action, the necessity of which could be seen only with the benefit of hindsight.
43.  The Court observes that seven years passed after the original decision of the Regional Office of Agriculture without the applicant being able to exercise any property rights, and it was only ten years after that decision that he eventually entered into possession of the land. His situation was compounded by the fact that even after the decision of the County Land Registry on 21 June 2006 he did not acquire a plot of land of the same value as that originally designated to him (see paragraph 10 above).
44.  The Court considers that the State’s obligation to secure to the applicant the effective enjoyment of his right of property, as guaranteed by Article 1 of Protocol No. 1, required the national authorities to take practical steps to ensure that decisions concerning the return of ownership are enforceable and not be hindered by errors in the land register. Such steps were first taken in the present case with the implementation of a new, accurate land register in Budakalász on 16 December 2005 (see paragraph 10 above) and, with regard to the applicant, with the designation of a new plot of land. However, by failing previously to keep an adequate land register and comply with the decision of the Regional Office of Agriculture, the national authorities left the applicant in a state of uncertainty with regard to the realisation of his property rights for a long time, denying him access to use, and dispose of, his land.
45.  Thus, as a result of what was an oversight or mistake in the land register, the applicant suffered serious frustration of his property rights. The risk of any mistake made by a State authority must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Lelas v. Croatia, no. 55555/08, § 74, 20 May 2010). Even if any measures concerning the applicant’s right to the plot of land would have affected the property rights of his neighbours, this cannot excuse the authorities’ inaction in finding a solution for the problem. The oversight of the Land Registry should not have resulted in a lengthy de facto denial of the applicant’s property rights.
46.  Having regard to all the above, the Court concludes that the applicant had to bear a disproportionate and excessive burden. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
47.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
48.  The applicants claimed 38,000 euros (EUR) in respect of pecuniary and non-pecuniary damage combined.
49.  The Government contested these claims.
50.  The Court considers it appropriate to award, on the basis of equity, EUR 10,000 to the applicant under all heads (see Metalco Bt. v. Hungary, no. 34976/05, § 32, 1 February 2011).
B.  Costs and expenses
51.  The applicant did not make any quantified costs claim.
C.  Default interest
52.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 1 of Protocol No. 1;

3.  Holds
(a)  that the respondent State is to pay the applicant’s heir, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage combined, to be converted into Hungarian forints at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the claim for just satisfaction.
Done in English, and notified in writing on 16 September 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Guido Raimondi
	Registrar	President