CASE OF BARCZA AND OTHERS v. HUNGARY

1. The case originated in an application (no. 50811/10) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Hungarian nationals, Ms Jenőné Barcza, Ms Jánosné Básits, and Mr László Pávai (“the applicants”), on 26 August 2010. The third applicant died on 21 September 2014. On 24 February 2015 his sons, Mr László Pávai Jr. and Mr István Pávai, applied to pursue the application before the Court in his stead, and retained the same lawyer to represent them.
2. The applicants were represented by Mr A. Cech, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.
3. The applicants alleged that the establishment of a water protection zone on their plot of land and the authorities ’ failure to expropriate their property constituted an interference with the peaceful enjoyment of their possessions for which they had not received adequate compensation, in breach of Article 1 of Protocol No. 1.
4. On 16 June 2015 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The first applicant, Ms Jenőné Barcza, was born in 1962 and lives in Solymár; the second applicant, Ms Jánosné Básits, was born in 1957 and lives in Dunabogdány; the third applicant, Mr László Pávai, was born in 1930 and lived in Leányfalu.
6. The applicants were co-owners of a vacant plot of land situated in the urban area of the municipality of Leányfalu. It was originally designated as non-agricultural land and registered under plot no. 2733.
7. On an unspecified date, the Central Danube Valley Directorate of Water Management ( Közép - Duna-völgyi Vízügyi Igazgatóság ) established a protection zone for the water reserve of Leányfalu municipality. According to this decision, the applicants ’ property, together with other plots of land, formed part of the protection zone. The administrative decision ordered the owner of the protected water reserve, the Hungarian State, to make an offer compensating the owners of the plots of land within the protection zone within sixty days.
8. On 16 December 2002 the General Directorate of Water Management ( Országos Vízügyi Igazgatóság) upheld the first-instance decision on the establishment of a protection zone for the municipality ’ s water reserve. The decision also required that if the owner of the protected water reserve was different from that of the land in the protection zone, the owner of the protected water reserve had the obligation to acquire ownership of the land in the protection zone, either through expropriation or through a sale and purchase agreement (see paragraphs 24 and 25 below). That decision also quashed the obligation to proceed with compensation for the landowners within sixty days.
9. By a decision of 4 October 2005 the Szentendre District Land Registry redesignated the applicants ’ plot of land as an “inner protection zone”.
10. Under the law, owners of land within the water protection zone were under an obligation to refrain from any activity that could endanger water quality or lead to pollution and from constructing any facility that did not serve the purposes of the water reserve. Moreover, they were obliged to allow the use of their property for any work necessary for the maintenance of the water reserve (see paragraph 25 below).
11. On 16 November 2005 the owners of the plots of land within the protection zone addressed a letter to the Treasury Asset Management Directorate ( Kincstári Vagyoni Igazgatóság ), the trustee of the water reserve, offering their plots of land for sale and asking the Directorate to make an offer.
12. The Directorate transferred the request to the Central Danube Valley Inspectorate for Environmental Protection, Nature Conservation and Water Management (Közép-Dunavölgyi Környezetvédelmi és Vízügyi Igazgatóság), which, due to lack of jurisdiction, returned the case to the Directorate on 13 December 2005, informing the Ministry of Environment Protection and Water Management about the measure. On 12 April 2006 the Ministry instructed the Danube Regional Waterworks Inc. (Duna Menti Regionális Vízmű Zrt.), the managing body of the water reserve, that the expropriation fell within the Waterworks ’ competence.
13. Meanwhile, in proceedings initiated by some of the landowners, the Pest County Regional Court established that the Treasury Asset Management Directorate was under an obligation to proceed with the expropriation. Accordingly, the applicants made a new representation to the Ministry on 31 October 2007, asking it to make an offer within thirty days of receipt of the letter.
14. On 18 February 2008 they re-submitted their request to the Central Directorate for Water and Environment ( Vízügyi és Környezetvédelmi Központi Igazgatóság ), the body appointed by the Ministry for further decision-making.
15. On 11 August 2008 the owners of the plots of land, including the applicants, asked the Central Hungarian Regional Administration Office ( Közép - magyarországi Regionális Közigazgatási Hivatal ) to instruct the Ministry to proceed with the expropriation by setting a time-limit.
16. Their request was dismissed on 11 August 2008. According to the Administration Office, the owners had first requested the expropriation of their properties on 31 October 2007, thus the statutory three - year period during which the Ministry could acquire the property had not expired. The owners sought judicial review of this decision.
17. By a decision of 22 October 2009 the Pest County Regional Court overturned the administrative decision and remitted the case to the Administration Office, stating that the three - year period had expired since the expropriation proceedings were initiated, on 16 November 2005, at which time the claimants had offered their plot of land for sale.
18. On 2 December 2008 the Danube Regional Waterworks informed the applicants that any measure concerning the ownership of the disputed plot of land fell within the competence of the State.
19. On 19 January 2009 the Central Directorate for Water and Environment informed the applicants that it had appointed a limited liability company to prepare the sale and purchase agreements and the documents necessary for the expropriation by 29 May 2009.
20. On 27 January 2009 the limited liability company forwarded a purchase offer for the acquisition of the applicants ’ plot of land for 3,974,000 Hungarian forints (HUF – approximately 13,000 euros (EUR)). The applicants disputed the amount of the compensation; nevertheless, the case file indicates that they never received an answer to their submissions.
21. On 14 December 2010 the Pest County Governmental Office ( Pest Megyei Kormányhivatal ) (the legal successor of the Central Hungarian Regional Administration Office) ordered National Asset Management Inc. ( Magyar Nemzeti Vagyonkezelő Zrt ) (the legal successor of the Treasury Asset Management Directorate) to serve an expropriation notice on the land owners within ninety days of receipt of the decision. This did not take place. After the deadline had passed the applicants applied to National Asset Management Inc. seeking the enforcement of the compulsory expropriation decision. The application was granted by the Government Office; despite this National Asset Management Inc. did not respond to any of the measures taken by the Government Office. Accordingly, the Government Office proceeded with the expropriation of its own motion, commissioning an expert opinion and holding hearings.
22. Finally, the decision on the expropriation of the applicants ’ plot of land was issued by the Government Office on 16 December 2011, establishing the amount of compensation at HUF 39,170,000 (approximately EUR 126,000).
The applicants received the compensation on 27 January 2012.
23. Law-Decree no. 24 of 1976 on Expropriation (in force until 31 December 2007) provided as follows:
“(1) Ownership of real property may be acquired by way of expropriation where acquisition by sale and purchase is not possible ... ”
“(1) Real property may be expropriated for the following purposes ...
“(1) Expropriation proceedings shall be conducted by the administration office.
(2) Expropriation proceedings shall be instituted upon request to that effect. Expropriation requests having the same objective and affecting several properties shall be determined in one set of proceedings by the administration office.
(3) Upon a request to that effect the administration office shall determine whether the expropriation serves the interest of the public, whether it is justified in furtherance of a public-interest purpose in respect of the property sought to be expropriated, and whether the further conditions of expropriation are met. Where these conditions are not met, the request shall be refused .”
24. Act no. CXXII of 2007 on Expropriation entered into force on 1 January 2008 and provided, as in force at the material time, as follows:
“ (1) Under section 2 points n)-o) the owner of the real property shall also have the right to initiate the purchase or expropriation of his property, where
a) the owner acquired ownership of the property prior to the imposition of the proprietary restriction specified in point b) or c), and
b) under the local building regulations or regulation plans the property has been selected for a public-interest purpose specified in the law and to be realised in the future, where the realisation of that purpose cannot be expected from the owner, and the selection of his property for that purpose substantially obstructs or terminates his proprietary and building rights,
c) a public-purpose right of use, cable right or easement related to the expropriation objectives specified in Section 2 point o) does, once created, substantially obstruct or terminate the proper use of the property.
(2) “In the case specified in subsection (1) point b) the owner of the property may request to oblige the beneficiary of the public-interest purpose or, in case of lack of such, the municipality, to submit an expropriation request where no agreement on the sale and purchase of the property has been reached within three years of the initiation of such an agreement.”
25. Government Decree no. 123/1997(VII.18.) on the protection of water resources and of water facilities supplying drinking water provides as follows:
“(1) In the inner wellhead zone and in the protection zone only water abstraction facilities and facilities serving the operational purposes of the water supply system connected to the water abstraction facilities may be placed. The facilities and the equipment shall be operated in such a way that no pollutants or contaminants enter the water body, the ground surface or the underground strata or the equipment collecting, abstracting or transporting water.
(2) In the inner protection zone
d) (as in force until 31 December 2007) the water facilities shall be in the same ownership [as the land in the zone]. The protection zone shall be enclosed by fence or shall be guarded in any other manner ...
d) (as in force from 1 January 2008) in case of public water supply facilities the land situated in the protection zone shall be owned by the State or the municipality, irrespective of the ownership of the facilities ... ”
“(1) For a real property situated in the inner protection zone of the public water supply facility the purchase offer shall be made by the operator of the protected public water supply facility (henceforth: “the operator ” ); where the purchase of the property becomes impossible, the operator shall institute expropriation proceedings.
(2) (as in force from 1 January 2008) Ownership of property acquired by way of purchase or expropriation shall pass to the State or the municipality, whichever is the owner of the public water supply facility.”
26. The third applicant died on 21 September 2014 and his sons informed the Court that they wished to pursue the application introduced by him (see paragraph 1 above). In a number of cases in which an applicant died in the course of the proceedings the Court has taken into account the statements of the applicant ’ s heirs or of close family members expressing the wish to pursue the proceedings (see Léger v. France (striking out) [GC], no. 19324/02, § 43, 30 March 2009, with further references). It has not been disputed that he is entitled to do so in the present case, and the Court sees no reason to hold otherwise (see Dimitar Krastev v. Bulgaria, no. 26524/04, § 42, 12 February 2013).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
27. The applicants complained that their right to peaceful enjoyment of possessions had been violated because of the domestic authorities ’ continuing failure to decide on the expropriation of their plot of land and their consequent inability to make use of their property during that period. They relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, which read as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
“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. Scope of the Court ’ s examination
28. According to the Government, the length of the expropriation proceedings is not a matter for consideration under Article 1 of Protocol No. 1, but under Article 6 § 1 of the Convention. They maintained that the present case was to be distinguished from the cases of Brumărescu v. Romania ( [GC], no. 28342/95, ECHR 1999 ‑ VII ) and Jasiūnienė v. Lithuania (no. 41510/98, 6 March 2003), where the Court upheld the applicants ’ complaint both under Article 6 of the Convention and Article 1 of Protocol No. 1. In their understanding this was only so because the applicants in those cases, in contrast with the applicants in the present one, had not received compensation for the interference with the peaceful enjoyment of their possessions which had taken place.
29. The Court observes that the applicants ’ complaint does not focus on the expropriation proceedings as such, but rather on the question whether the failure to initiate the said expropriation proceedings, together with the restrictions established on the use of their property, was compatible with the guarantee of the right of peaceful enjoyment of possessions.
30. Thus, the Court considers that the applicants ’ complaints fall to be examined solely under Article 1 of Protocol No. 1 to the Convention.
31. The Government argued that the applicants ’ grievances consisted of the loss of their property through expropriation. They maintained that the measures leading to the expropriation should be regarded as a whole, in particular because following the establishment of a water protection zone in 2002 the applicants ’ property had become unsellable, amounting to a de facto expropriation already at that point. They contended that any disputes arising from the expropriation had been settled by the Pest County Government Office, which had awarded the applicants adequate compensation, in the amount of HUF 39,170,000 (see paragraph 22 above). Moreover, the domestic authorities acknowledged the existence of an interference with the applicants ’ right to property. In particular, on 22 October 2009 the Pest County Regional Court ordered the administrative authorities to proceed with the expropriation (see paragraphs 17 above).
32. The applicants argued that the act of expropriation of their plot of land should be distinguished from the period when they could not make use of their property, owing to the establishment of a water protection zone. While they had been adequately compensated for the loss of their property, no domestic court judgment or administrative decision had provided any redress for the latter. They further submitted that the decision of the Government Office made no mention of the lengthy restriction on the use of their property and therefore could not be interpreted as acknowledging a violation of Article 1 of Protocol No. 1.
33. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of “victim” status unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI, and Konstantin Markin v. Russia [GC], no. 30078/06, § 82, ECHR 2012 (extracts) ).
34. The issue as to whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 181, ECHR 2006 ‑ V, and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 82, ECHR 2012 ).
35. In the instant case the applicants ’ plot of land was finally expropriated by a decision of the Government Office on 16 December 2011 for which they received compensation on 27 January 2012. The expropriation put an end to the situation complained of by the applicants. However, in the Court ’ s view this did not constitute either an implicit acknowledgment of a breach of the Convention or redress for the period during which the applicants were unable to use their plot of land and the domestic authorities were not proceeding with the expropriation. The Court further considers that there was no acknowledgment, either explicitly or in substance, of a violation of Article 1 of Protocol No. 1 in the context of the preceding domestic proceedings. In its decision of 22 October 2009 the Pest County Regional Court held that the dismissal of the applicants ’ expropriation request by the Central Hungarian Regional Administration Office was based on an erroneous application of the law and a similarly erroneous assessment of the facts. Accordingly, it ordered the administrative authority to proceed with the expropriation. There is no indication in the decisions in question that, as well as being unlawful, the administrative authority ’ s conduct contravened the principles established by the Court in relation to the right to peaceful enjoyment of possessions.
36. The Court therefore considers that the applicants ’ inability to use their property for a period of nine years and the domestic authorities ’ delay in the expropriation proceedings (see paragraphs 7 and 21 above) was neither acknowledged nor remedied by the domestic authorities.
37. The Court therefore dismisses the Government ’ s objection.
38. The Court notes that the application 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.
39. The applicants ’ submission stated that there had been an interference with their right to the peaceful enjoyment of their possessions. From 2002 onwards the land in question was subject to a number of restrictions concerning industrial, transport and agricultural activities, and to a ban on construction. Apart from these constraints, the domestic authorities failed to proceed with the expropriation of the property for an excessive length of time, despite their legal obligation to do so. The applicants submitted that the combined effects of these measures had resulted in their property being subject to a measure of control from elsewhere. The applicants did not contest the legitimacy of the establishment of a water protection zone in 2002. Nonetheless, according to them, they had a legitimate reason to believe that their land, subject to a number of restrictions while the measure was in force, would be expropriated shortly afterwards; the authorities ’ delay of nine years did not strike a fair balance between the individual and general interests involved. They also maintained that this situation did not give rise to any compensation.
40. The Government argued that the primary aim of the impugned measure had to be taken into consideration when deciding on the nature of the interference. Since it had been clear from the relevant law that the properties affected by the establishment of a water protection zone could not remain in the ownership of the applicants, any measure interfering with the applicant ’ s rights aimed at and amounted to a deprivation of property. Furthermore, even in the absence of a formal expropriation, regard must be had to the realities of the situation, that is the de facto expropriation of the applicants ’ property with effect from 2002 (see paragraph 3 1 above). Moreover, the case was to be distinguished from situations where expropriation of the applicants ’ property had been engaged but not carried out (see Sporrong and Lönnroth v. Sweden, 23 September 1982, Series A no. 52 ), and where the Court examined the case under the first rule in Article 1 of Protocol No. 1.
41. As the Court has stated on a number of occasions, 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, inter alia, to have a measure of control over the use of property in accordance with the general interest. The three rules are not, however, distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property, and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000-I, and Sargsyan v. Azerbaijan [GC], no. 40167/06, § 217, ECHR 2015).
42. In the present case, the Court observes that the situation complained of by the applicants stemmed from the fact that their property was designated as an inner water protection zone and that the expropriation was envisaged by law but not carried out for a period of approximately nine years.
43. In particular, the Court notes that following the adoption of a decision on the establishment of a water protection zone, the applicants ’ plot of land was designated as an inner protection zone by an entry in the land registry. The decision of the General Directorate of Water Management of 16 December 2002 informed the applicants that pursuant to section 15 (1) of Government Decree no. 123/1997(VII.18.) their plot of land should be expropriated with a view to establishing the same ownership over the water reserve and over the land where it was located. The decision did not set a time-limit for the measure (see paragraphs 7 and 8 above). It also specified that the applicants could also initiate a transfer of ownership if the authorities failed to do so. Despite the eventual establishment of the water protection zone, the authorities did not expropriate the applicants ’ plot of land until 2011, but used it for water management purposes.
44. Therefore, the establishment of the protection zone significantly reduced the effective exercise of the applicants ’ property right through restrictions on the use of property and through a ban on construction. These measures clearly amounted to a measure of control of the use of property, within the meaning of the second paragraph of Article 1 of Protocol No. 1. However, the applicants ’ complaint also relates to the authorities ’ failure to expropriate their land, despite a legal obligation and their request to do so. As a result, the applicants were not able to get the pecuniary compensation which would have been due in case of expropriation. The Court acknowledges in this respect that, over a long period of time, pending the adoption of the decision on expropriation, the applicants ’ right of property was precarious (see Sporrong and Lönnroth, cited above, § 60). However, until 16 December 2011, when the decision was taken, the applicants ’ ownership right had not disappeared. Thus, contrary to the arguments of the Government, the effects of the measures involved were not such that they could be equivalent to a formal or de facto deprivation of possessions. Although these measures did not all have the same legal effect and had different aims, the Court considers that they must be looked at together in the light of the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, Matos e Silva, Lda., and Others v. Portugal, 16 September 1996, § 85, Reports of Judgments and Decisions 1996 ‑ IV).
45. It now needs to be ascertained whether the interference in question struck 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 (see, among many other authorities, Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 93, ECHR 2005 ‑ VI).
46. In determining whether this requirement has been met, the Court recognises that regional planning and environmental conservation policies, where the community ’ s general interest is pre-eminent, confer on the State a margin of appreciation that is greater than when exclusively civil rights are at stake (see Depalle v. France [GC], no. 34044/02, § 84, ECHR 2010).
47. In the present case, the Court notes that although the domestic authorities were obliged to initiate an expropriation procedure with a view to acquiring ownership of the plot of land for the water protection zone, they failed to do so. Even after the applicants had offered their plot for sale on 16 November 2005, no steps were taken to complete the expropriation procedure, since, apparently, the applicants ’ attempt to have an authority designated to exercise jurisdiction over the matter did not yield any result (see paragraphs 11-12 above). In similar vein, the applicants ’ further offer of 31 October 2007 to sell their property to the State was to no avail (see paragraph 14 above). Finally, even after the confirmation of the administrative authorities ’ obligation to conclude the expropriation procedure by a court judgment on 22 October 2009 (see paragraph 17 above), National Asset Management Inc., the authority designated to conduct the expropriation, took no action for an additional period of two years, when the expropriation was finally enforced by the Pest County Government Office (see paragraph 21 above ); the authorities thus took no action for an additional period of time, until 16 December 2011. Thus, in addition to the detrimental effects of the establishment of a water protection zone on the exercise of their right to property, the applicants were left in a state of uncertainty as to the fate of their plot of land over a long period of time (see, mutatis mutandis, Frendo Randon and Others v. Malta, no. 2226/10, § 55, 22 November 2011), during which they could neither realistically expect to sell their property at a fair price nor obtain expropriation against compensation.
48. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 1 of Protocol No. 1 to the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
49. 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.”
50. The applicants claimed, jointly, 77,250 euros (EUR) in respect of pecuniary damage. This amount corresponded to the loss of enjoyment they suffered as a result of the fact that they were unable to use their property, taking into account the value of compensation they had received for expropriation. The applicants also claimed compensation for non-pecuniary damage in the amount of EUR 30,000, jointly, for the stress and anxiety suffered by them over a long period of time.
51. The Government contested these claims.
52. Among the matters which the Court takes into account when assessing compensation are pecuniary damage, which is the loss actually suffered as a direct result of an alleged violation, and non-pecuniary damage, which is reparation for the anxiety, inconvenience, uncertainty and other non-pecuniary loss caused by such violation (see, Žilinskienė v. Lithuania, no. 57675/09, § 60, 1 December 2015 ). In addition, if one or more heads of damage cannot be calculated precisely, or if the distinction between pecuniary and non-pecuniary damage proves difficult, the Court may decide to make an overall assessment (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000-IV).
53. The Court considers that the applicants suffered a certain amount of pecuniary loss in connection with the failure of the State to proceed with the expropriation of their plot of land for an extended period of time and in connection with the restrictions on the use of their property. Moreover, the Court also finds that the applicants must have suffered uncertainty and frustration as a result of the violation found.
54. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicants jointly a lump sum of EUR 39 ,000 in respect of pecuniary and non-pecuniary damage combined.
55. The applicants claimed EUR 5, 937 plus 27 % value-added tax (VAT) for the legal fees incurred before the Court. This amount corresponded to 48.2 hours of legal work charged at an hourly rate of EUR 1 18 plus VAT, and 6.2 hours of paralegal work charged at an hourly rate of EUR 40 plus VAT.
56. The Government contested this claim.