CASE OF KOTHENCZ v. HUNGARY (European Court of Human Rights) Application no. 29258/16

Last Updated on December 6, 2020 by LawEuro

. The case concerns legislative amendments removing the applicant’s usufruct rights over agricultural land. The applicant relied on Article 1 of Protocol No. 1 to the Convention.

FOURTH SECTION
CASE OF KOTHENCZ v. HUNGARY
(Application no. 29258/16)
JUDGMENT
(Merits)
STRASBOURG
13 October 2020

This judgment is final but it may be subject to editorial revision.

In the case of Kothencz v. Hungary,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Faris Vehabović, President,
Iulia Antoanella Motoc,
Carlo Ranzoni, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 29258/16) 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 Géza Kothencz (“the applicant”), on 5 May 2016;

the decision to give notice to the Hungarian Government (“the Government”) of the complaint concerning Article 1 of Protocol No. 1 and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 22 September 2020,

Delivers the following judgment, which was adopted on that date:

1. The case concerns legislative amendments removing the applicant’s usufruct rights over agricultural land. The applicant relied on Article 1 of Protocol No. 1 to the Convention.

THE FACTS

2. The applicant was born in 1944 and lives in Baja. He was represented by Mr L. Jován, a lawyer practising in Budapest.

3. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice.

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

5. In the context of his divorce and the separation of matrimonial property in 2002, the applicant acquired usufruct rights over some agricultural lands. He became entitled to use these lands as a life-long beneficiary.

6. The rights were formally registered in the land register.

7. Up until 31 December 2001, domestic natural and legal persons, as well as foreign natural and legal persons, were able to acquire usufruct rights on agricultural land without any legal limitation. After this date, no foreign person could establish such rights over agricultural lands in Hungary. According to the Government, this legislative change resulted in an increase in the number of concealed contracts by means of which foreign natural and legal persons obtained usufruct rights in Hungary. As of 1 January 2013, new contracts between domestic natural persons for the pro futuro establishment of usufruct rights over agricultural lands were statutorily declared null and void by the implementation of an amendment contained in section 7 of Act no. CCXIII of 2012 on the Amendment of Certain Acts on Agriculture with the exception of those concluded by and between close relatives.

8. With a view to terminating these usufruct rights over agricultural lands obtained through concealed contracts, Parliament enacted Act no. CCXII of 2013 on Certain Provisions and Transitional Rules related to Act no. CXXII of 2013 on Transactions in Agricultural and Forestry Land (hereafter “the Transition Act”) which was promulgated on 12 December 2013 and came into effect on 14 December 2013. Section 108 of the Transition Act (see paragraph 15 below) terminated ipso iure all usufruct rights over agricultural lands as of 1 May 2014, except for rights established between close relatives.

9. The deregistration of the usufruct rights was implemented under the then effective rules of Act no. CXLI of 1997 on the Land Registry (hereafter “the Land Registry Act”). Section 94 of the Land Registry Act obliged the authority to request a declaration from natural persons affected by the measures in order to verify whether they were close relatives of the owner of the land. The usufruct rights were struck out of the land register as a matter of course in cases where the affected natural persons failed to submit a declaration demonstrating close relationship with the owner of the land or where the usufruct right holder was a legal person.

10. The applicant’s usufruct rights were struck out of the land register on 8 October 2014, by decisions of declarative effect given by the competent administrative authorities in accordance with the Transition Act, since he was not considered a close relative of the owner of the land. On 27 April 2015 his administrative appeal was dismissed.

11. On 6 October 2015 the applicant’s court action was dismissed on the merits in a judgment of the Kecskemét Administrative and Labour Court (service: 5 November 2015). The court was satisfied that the administrative authorities’ procedure had been in compliance with the law and that the applicant’s case had indeed fallen within the scope of the legislative changes in question.

12. Meanwhile, in February 2014 constitutional complaints were lodged by various complainants with the Constitutional Court against the provisions of the Transition Act, arguing that the ex lege termination of lawfully acquired usufruct rights without any indemnification or transitory period violated the constitutional protection of property rights.

13. The Constitutional Court analysed the alleged unconstitutionality of section 108.

On 21 July 2015 it found, in decision no. 25/2015. (VII.21.) AB, that the legislator had failed to enact extraordinary rules to compensate the contracting parties for the financial disadvantages deriving from the ex lege termination of the usufruct and use contracts regulated by the Transition Act. It emphasised that, given the diversity of the concerned legal relationships, the general settlement rules applicable under civil law were not capable of resolving all possible claims between the parties concerned. Therefore, as a result of the failure of the legislator to enact a statutory settlement regime, an unconstitutional omission was found. The Constitutional Court called the legislator to put an end to it by 1 December 2015 at the latest.

14. At the date of the latest information available to the Court provided by the applicant on 26 March 2017, the Government had not yet created the compensation scheme prescribed by the Constitutional Court.

RELEVANT LEGAL FRAMEWORK

15. Section 108 of the Transition Act provides as follows:

“(1) Any usufruct and right of use existing on 30 April 2014, founded by a contract entered into by and between not close relatives, for indefinite or a definite period of time ending after 30 April 2014, shall cease on 1 May 2014, by operation of law.

(2) A contract on the assignment of the right to use a piece of land for a period of time following the cessation of the usufruct right is null and void if it has been entered into by the beneficiary of the usufruct right existing until the end of the period of time determined under subsection (1).

(3) A contract on the assignment of the right to use the piece of land existing until the end of the period of time determined under subsection (1), entered into by a beneficiary of the usufruct right, prior to the entry into force of Act no. XVI of 2014 on the amendment of collective investment forms and their trustees as well as of certain financial acts, ceases on 1 September 2014 by operation of law.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 of PROTOCOL No. 1 to the CONVENTION

16. The applicant complained that he had been deprived of his possessions without compensation in violation of Article 1 of Protocol No. 1 to the Convention, which 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.”

A. Admissibility

17. The Government argued that the applicant had failed to exhaust the available domestic remedies. In particular, they referred to the possibility of a settlement, in court proceedings, between the owner of the agricultural land and the usufruct right holder under the ordinary rules of civil law. The applicant disagreed.

18. The general principles concerning exhaustion of domestic remedies are resumed in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). The Court reiterates, in particular, that under Article 35 of the Convention, the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation (see, among many other authorities, Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)).

19. More specifically, the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient; the existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. It falls to the respondent State to establish that these various conditions are satisfied (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 76, 17 May 2016).

20. The Court further observes that an action for damages may sometimes be deemed sufficient in certain circumstances, in particular where compensation is the only means of redressing the wrong suffered (see, mutatis mutandis, Iatridis v. Greece [GC], no. 31107/96, § 47, ECHR 1999‑II). In the instant circumstances, however, the Court is not persuaded that initiating civil proceedings against the owners of the agricultural land would have been an alternative to genuine measures which the Hungarian legal system should have afforded. Without embarking on a closer scrutiny of the nature of the civil-law remedies suggested by the Government, the Court observes that the Constitutional Court itself held that, given in particular the diversity of the legal relationships concerned, the general settlement rules under civil law were not capable of resolving all possible claims between the parties concerned and a dedicated legal scheme for compensation was required in the instant situation (see paragraph 13 above). At the date of the latest information available to the Court provided by the applicant on 26 March 2017, this scheme had not been enacted by the lawmaker (see paragraph 14 above). In these circumstances, the Court is satisfied that the application cannot be rejected for non-exhaustion of domestic remedies.

21. The Government further argued that the alleged violation had occurred directly, ex lege, on 1 May 2014 and therefore the application was introduced outside the six-month time-limit contemplated in Article 35 § 1 of the Convention. The applicant disagreed.

22. The Court observes that a dispute occurred before the administrative authorities as to whether the applicant benefited from the exception made for close relatives of the land owner; subsequently the Kecskemét Administrative and Labour Court examined the applicant’s action directed against the ensuing administrative decisions on the merits and gave judgment on 6 October, served on 5 November 2015 (see paragraphs 10 and 11 above). In view of this fact, the Court is satisfied that the procedure pursued by the applicant was not futile and did interrupt the running of the six-month time-limit. The application was introduced on 5 May 2016, that is to say, within six months counted from the date of service of that judgment. It follows that the application cannot be rejected for non-compliance with the six-month time-limit.

23. The Court further notes that the application is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

24. The Government submitted that even though the impugned measure had amounted to an interference with the applicant’s property rights, the interference was prescribed by law and justified. They maintained that the aim of the legislation was to ensure the cultivation of Hungarian agricultural land by Hungarian farmers and to cease the disadvantageous fragmentation of estates caused by the ownership structure and land speculation, and also to harmonise domestic regulations on the ownership and use of agricultural land with European Union regulations.

25. The Government also argued that the change in legislation had been foreseeable, since as from 1 January 2002, no foreign natural or legal person had been allowed to establish contractual usufruct rights over agricultural land (see paragraph 7 above), and therefore it could not have been expected that usufruct rights acquired prior to the legislative change would remain intact.

26. The Government disputed that the decision of the Constitutional Court (see paragraph 13 above) created an obligation on the legislature to provide a compensation scheme for usufruct holders, since this would create an unfair situation with regard to landowners who were not part of the scheme.

27. Finally, the Government submitted that the measures complained of had not placed an excessive burden on the applicant, as compensation was possible either by a settlement or by civil-law claims against the owner of the agricultural land.

28. The applicant did not submit observations on the merits of the case.

2. The Court’s assessment

(a) Whether there has been an interference

29. The Court notes that it was not in dispute between the parties that the applicant was “deprived of [his] possessions”, within the meaning of the second sentence of Article 1 of Protocol No.1 of the Convention by virtue of the contested legislation. The Court sees no reason to hold otherwise.

30. Such interference must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Fábián v. Hungary [GC], no. 78117/13, § 65, 5 September 2017; Béláné Nagy v. Hungary [GC], no. 53080/13, § 113, 13 December 2016).

(b) Lawfulness

31. The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention. The principle of lawfulness also presupposes a certain quality of the applicable provisions of domestic law. In this regard, it should be pointed out that when speaking of “law”, Article 1 of Protocol No. 1 alludes to the very same concept as that to which the Convention refers elsewhere when using that term. It follows that the legal norms upon which the interference is based should be sufficiently accessible, precise and foreseeable in their application. In particular, a norm is “foreseeable” when it affords a measure of protection against arbitrary interferences by the public authorities. Any interference with the peaceful enjoyment of possessions must, therefore, be accompanied by procedural guarantees affording to the individual or entity concerned a reasonable opportunity of presenting their case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by that provision. In ascertaining whether that condition has been satisfied, a comprehensive view must be taken of the applicable judicial and administrative procedures (see Lekić v. Slovenia [GC], no. 36480/07, §§ 94‑95, 11 December 2018, with further references; see also Capital Bank AD v. Bulgaria, no. 49429/99, § 134, ECHR 2005-XII).

32. In the present case, the Court notes that the interference consisted of the specific legislation, namely the Transition Act, which came into effect on 14 December 2013 and in its application in the instant case (see paragraphs 8, 10 and 15 above). There was no dispute between the parties that the domestic legal provisions providing the legal basis for the impugned interference were accessible to the applicant. The Court sees no reason to disagree on that point.

33. On the issue of whether the legal consequences of the Transition Act were foreseeable, the Court observes that the parties did not put forward any arguments to the contrary. The Court is therefore satisfied that the rules in question were formulated with sufficient precision and thus met the qualitative requirement of foreseeability.

34. As regards foreseeability, the Court observes that starting from 1 January 2002 no foreign legal or natural person could establish new contractual usufruct rights on agricultural land in Hungary; moreover, starting from 1 January 2013, contracts between domestic natural persons for the establishment of new usufruct rights – with the exception of those concluded by and between close relatives – were statutorily declared null and void (see paragraph 7 above).

35. The Court agrees with the Government (see paragraph 25 above) in that the direction set by this sequence of legislation demonstrated a clear trend, foreshadowing the possibility of the implementation of further restrictive regulation of usufruct rights with foreign beneficiaries. Reiterating that neither the Convention nor its Protocols prevent the legislature from interfering with existing contracts (see Bäck v. Finland, no. 37598/97, § 68, ECHR 2004‑VIII), the Court cannot conclude that the interference in question was unforeseeable in this respect and therefore incompatible with the principle of lawfulness.

36. However, as regards the requirement enounced in the Court’s case‑law, according to which an interference with the peaceful enjoyment of possessions must be surrounded by adequate procedural guarantees enabling an applicant effectively to challenge the measures in question, the Court cannot but note the persistent absence of a comprehensive compensatory scheme.

37. This legislative omission was specifically pointed out by the Constitutional Court, which set a deadline for the lawmaker to provide for such rules. However, at the date of the latest information available to the Court, no legislation had been enacted in pursuit of this ruling (see paragraphs 13 and 14 above).

38. For the Court, this omission raises doubts as to the lawfulness of the interference in question (see, mutatis mutandis, Capital Bank AD, cited above, § 139). However, in the circumstances of the present case the Court does not consider it necessary to ascertain whether the applicant had at his disposal sufficient procedural guarantees as, even assuming that he had, the measures complained of would in any event violate Article 1 of Protocol No. 1, for the following reasons.

(c) Legitimate aim

39. The Court reiterates that any interference by a public authority with the peaceful enjoyment of possessions can only be justified if it serves a legitimate public (or general) interest. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions (see Béláné Nagy, cited above, § 113). The notion of “public interest” is necessarily extensive. The Court finds it natural that the margin of appreciation available to the legislature in implementing economic policies should be wide and will respect the legislature’s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see Jahn and Others v. Germany [GC], nos. 46720/99 and 2 others, § 91, ECHR 2005‑VI).

40. The Government submitted in particular that the aim of the legislation was to stop the fragmentation of land caused by land speculation as well as to promote the use of arable land by domestic farmers.

41. The Court – in the light of the wide margin of appreciation afforded to the State – considers that the interference complained of may be regarded as pursuing a national economic interest. The latter consisted in the elimination of disadvantageous fragmentation of estates, that is to say, in the creation of economically viable agricultural lands. The Court therefore is satisfied that the enactment of the Transition Act served a legitimate aim.

(d) Proportionality of the interference

42. As to the proportionality of the interference, the respondent Government submitted that the measure complained of did not place an excessive burden on the applicant since compensation had in theory been possible under civil law (see paragraph 27 above).

(i) General principles

43. The Court reiterates that an interference with the peaceful enjoyment of possessions must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions (see Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 38, Series A no. 332; Former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 89-90, ECHR 2000‑XII,; and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 93, ECHR 2006‑V). In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (see Chassagnou and Others v. France [GC], nos. 25088/94 and 2 others, § 75 ECHR 1999‑III).

44. Nevertheless, the Court cannot abdicate its power of review and must determine whether the requisite balance was maintained in a manner consonant with the applicant’s right to the peaceful enjoyment of his possessions, within the meaning of the first sentence of Article 1 of Protocol No. 1 (see Jahn and Others, cited above, § 93). Compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it does not impose a disproportionate burden on the applicants. In this connection, the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301‑A; Former King of Greece and Others, cited above, § 89; Turgut and Others v. Turkey, no. 1411/03, §§ 86-93, 8 July 2008; and Şatır v. Turkey, no. 36192/03, § 34, 10 March 2009).

45. However, Article 1 of Protocol No. 1 does not guarantee the right to full compensation in all circumstances (see James and Others v. the United Kingdom, 21 February 1986, § 54, Series A no. 98, and Broniowski v. Poland [GC], no. 31443/96, § 182, ECHR 2004-V). While it is true that even in many cases of lawful expropriation, such as a distinct taking of land for road construction or other public purposes, only full compensation may be regarded as reasonably related to the value of the property, this rule is not without exceptions (see Former King of Greece and Others, cited above, § 78). Legitimate objectives of “public interest”, such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value (see James and Others, cited above, § 54, and Valle Pierimpiè Società Agricola S.p.a. v. Italy (merits), no. 46154/11, § 72, 23 September 2014).

(ii) Application of these principle to the present case

46. The margin of appreciation afforded to the State in identifying appropriate measures for the implementation of the reform in question is a wide one as noted in paragraph 39 above. However, the Court emphasises that such measures must not be disproportionate in terms of the means employed and the aim sought to be realised, and must not expose the parties concerned to an individual and excessive burden.

47. As regards the personal burden which the applicant sustained on account of the impugned measure in the present case, the Court first notes that the applicant had acquired long-term usufruct rights before the enactment of the Transition Act and had been carrying out agricultural activity based on those usufruct rights. The ex lege termination of the applicant’s usufruct rights thus affected long-term legal relationships.

48. Moreover, the Court observes that the legislation, promulgated on 12 December 2013, set the date of the ex lege termination for 1 May 2014, little more than four months later (see paragraph 8 above), which – in the context of legal relationships existing for a number of years previously – cannot be held to have afforded the applicant a sufficient transitional period within which to adjust himself to the new scheme. The Government failed to submit any argument concerning the relative brevity of the transitory period; they made no reference to any pressing economic or social need which could have prevented affording a longer such period. In particular, for the Court, the ex lege termination of usufruct rights for the purpose of circumventing land speculation and creating viable estates cannot be considered as corresponding to an exceptional circumstance which would allow for shortening the transitory period (compare and contrast with Jahn and Others, cited above, §§ 116-17).

49. The Court further finds it relevant that the State provided no possibility for judicial redress or financial compensation to counterbalance the interference caused by the impugned measure. This omission was found to be unconstitutional by the Constitutional Court, which prescribed a deadline of 31 December 2015 for the State to rectify the situation. The deadline expired without any result (see paragraphs 13 and 14 above).

50. The Court notes the Government’s argument according to which the measure at issue did not impose an excessive burden on the applicant, since compensation was obtainable by way of either a settlement or civil-law claims brought against the land-owner (see paragraph 27 above). However, the effectiveness and scope of such proceedings and agreements are questionable at the very least, as noted by the Constitutional Court in its decision no. 25/2015. (VII. 21.) AB (see paragraphs 13 and 20 above).

51. In sum, having regard to the short transitory period and the lack of any compensatory scheme, the Court concludes – even bearing in mind the wide margin of appreciation afforded to the State in implementing the reform in question – that the interference with the applicant’s rights was disproportionate to the aim pursued and that the applicant had to bear an individual and excessive burden. A disproportionate measure, especially without any scheme of compensation, does not satisfy the requirements of the protection of possessions under Article 1 of Protocol No. 1 (see, mutatis mutandis, Vékony v. Hungary, no. 65681/13, § 35, 13 January 2015, and Valle Pierimpiè Società Agricola S.p.a., cited above, §§ 74–77).

52. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

53. 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.”

54. The applicant claimed compensation in general terms. The Government did not comment on this claim.

55. The applicant made no costs claim.

56. The Court considers that the question of the application of Article 41 is not ready for decision. It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicant (Rule 75 §§ 1 and 4 of the Rules of Court).

57. Accordingly, the Court reserves this question in whole and invites the Government and the applicant to notify it, within six months of any agreement that they may reach.

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 to the Convention;

3. Holds that the question of the application of Article 41 is not ready for decision, and accordingly:

(a) reserves the said question in whole;

(b) invites the Government and the applicant to submit, within six months, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;

(c) reserves the further procedure and delegates to the President of the Committee the power to fix the same if need be.

Done in English, and notified in writing on 13 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Ilse Freiwirth                           Faris Vehabović
Deputy Registrar                     President