Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 26384/95

Mária SAMKOVÁ

against

the Slovak Republic

REPORT OF THE COMMISSION

(adopted on 15 January 1997)

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . 1

PART I : STATEMENT OF THE FACTS. . . . . . . . . . . . . . 2

PART II : SOLUTION REACHED. . . . . . . . . . . . . . . . . 4

INTRODUCTION

1. This Report relates to the application introduced under

Article 25 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms by Mária Samková against the Slovak

Republic on 10 November 1994. It was registered on 2 February 1995

under file No. 26384/95.

2. The applicant was represented by Mr. J. Maly, a lawyer practising

in Bratislava.

3. The Government of the Slovak Republic were represented by their

Agent, Mr. Robert Fico.

4. On 26 June 1996 the Commission (Second Chamber) declared the

application admissible. It then proceeded to carry out its task under

Article 28 para. 1 of the Convention which provides as follows:

"In the event of the Commission accepting a petition referred to

it:

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination

of the petition and, if need be, an investigation, for the

effective conduct of which the States concerned shall furnish all

necessary facilities, after an exchange of views with the

Commission;

b. it shall at the same time place itself at the disposal of

the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for Human Rights

as defined in this Convention."

5. The Commission (Second Chamber) found that the parties had

reached a friendly settlement of the case and on 15 January 1997 it

adopted this Report, which, in accordance with Article 28 para. 2 of

the Convention, is confined to a brief statement of the facts and of

the solution reached.

6. The following members were present when the Report was adopted:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

PART I

STATEMENT OF THE FACTS

7. The applicant is a Slovak national born in 1917. She is retired

and resides in Dolné Vestenice.

8. In 1961 a plot owned by the applicant and her late husband was

expropriated for construction of a zoological garden. In 1963 they

received compensation according to the rules then in force.

9. In 1991 the applicant claimed restitution. As the administration

of the zoological garden refused to restore the property, the applicant

claimed restitution before the Bratislava Land Office pursuant to

Section 9 para. 4 of the Land Ownership Act.

10. On 7 April 1992 the Land Office held an examination of the area.

Its aim was to determine whether the land served the purpose for which

it had been initially expropriated. The applicant attended the

examination together with some 15 other claimants. The record drawn

up after the examination does not contain any reference to the plot

claimed by the applicant and to the comments she made in the course of

the examination.

11. On 31 January 1994 the Land Office dismissed the applicant's

claim. It found, with reference to information submitted by the

administration of the zoological garden and to the letter of the City

Council of 25 January 1994, that since animals owned by the zoological

garden were kept on the plot, it was used for the purpose for which it

had been expropriated. Therefore, it could not be restored pursuant

to Section 6 para. 1 (m) of the Land Ownership Act.

12. On 8 March 1994 the applicant lodged an appeal to the Bratislava

City Court. She alleged that pursuant to Section 6 para. 1 (m) and (r)

of the Land Ownership Act she was entitled to restitution of the land

as the expropriation had not respected human rights since it had aimed

at the liquidation of private property. She further alleged that no

animals had been kept on the plot at issue during the relevant period

(i.e. between 1961 and 1 January 1990). She maintained that animals

could be kept on the plot only if the original construction plans had

been carried out, which was not the case. The applicant concluded that

her former plot had never served the purpose for which it had been

expropriated. She proposed to hear witnesses including the

participants in the examination which had taken place on 7 April 1992.

The applicant expressly requested the court to hold an oral hearing.

13. Before submitting the applicant's appeal to the City Court, the

Land Office ordered a second examination of the site which was

connected with an oral hearing pursuant to Section 21 of the

Administrative Proceedings Act. It took place on 24 March 1994.

14. According to the record there were still some fruit trees on the

plot originally owned by the applicant. The representative of the

zoological garden disagreed with the proposal to restore the plot and

stated that animals would be kept again on it later that year. The

Land Office concluded that the property at issue could not be restored.

The applicant attended the examination but the record contains no note

of whether she made any statements.

15. On 11 May 1994 the Bratislava City Court upheld the Land Office's

decision of 31 January 1994. The court held that the plot was part of

the zoological garden's area and therefore served the general purpose

of the 1961 expropriation, i.e. the construction of a zoological

garden. In the court's view it was irrelevant whether or not animals

were kept on the plot since it served the needs of the zoo as a whole,

e.g. for aesthetic and functional purposes.

16. The City Court found that since compensation had been paid to the

former owners, the expropriation could not be regarded as lacking

respect for human rights. With reference to Section 250f of the Code

of Civil Procedure it considered that no hearing was necessary in the

applicant's case.

17. The applicant lodged a complaint with the Supreme Court in which

she alleged that the proceedings before the Bratislava City Court had

been unfair. On 29 September 1994 the Supreme Court discontinued the

proceedings for lack of jurisdiction.

18. Before the Commission, the applicant alleged a violation of

Article 6 para. 1 of the Convention in the proceedings before the

Bratislava Land Office and the Bratislava City Court in that (i) the

decisions had been based exclusively on the arguments presented by the

defendant, (ii) the court had reached an unfair decision because of

erroneous interpretation of the law, (iii) the court had refused to

hear witnesses and failed to establish the facts of the case, and (iv)

there had been no public hearing in her case.

PART II

SOLUTION REACHED

19. Following the decision on the admissibility of the application,

the Commission (Second Chamber) placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the parties

to submit any proposals they wished to make.

20. In accordance with the usual practice, the Chamber Secretary,

acting on the Commission's instructions, contacted the parties to

explore the possibilities of reaching a friendly settlement.

21. By letter of 23 August 1996 the Government notified the

Commission that their proposals for a friendly settlement made to the

applicant on 21 August 1996 had been accepted by her. The agreement

about friendly settlement, signed by both parties, reads as follows:

[Translation]

"... the Government of the Slovak Republic shall provide the

necessary legal conditions for an oral hearing of the applicant's

claim so that all guarantees laid down by Article 6 para. 1 of

the Convention are respected. For this purpose:

a) the applicant shall file a re-trial petition with the

Bratislava II District Office (hereinafter the District Office)

for new proceedings;

b) the District Office shall consider the decision of the

Commission of 26 June 1996 on the admissibility of the

application to be a new fact of considerable importance

justifying the commencement of new proceedings in the restitution

claim which has already been finally decided;

c) following the approval to commence the new proceedings the

District Office shall be ready to consider the applicant's claim

by conducting an oral hearing and examination of the site within

the intentions of this agreement, the merits of the application

and the reasons of the decision of the Commission on the

admissibility of the application;

d) should the applicant's case be unsuccessful at the oral

hearing before the District Office, the Bratislava City Court

shall be ready to decide on the appeal at an oral hearing in

conformity with the requirements of Article 6 para. 1 of the

Convention and within the intentions of this agreement, the

merits of the application and reasons of the decision of the

Commission on the admissibility of the application.

This Agreement shall not be interpreted as any admission by the

Government of the Slovak Republic of any violation of the

Convention.

The Government of the Slovak Republic, shall, in an adequate

manner, draw the attention of the national judicial authorities

to the urgent need of the respect for the requirements contained

in Article 6 para. 1 of the Convention when applying the

provisions of Section 250f of the Code of Civil Procedure."

22. At its session on 15 January 1997, the Commission noted that the

parties had reached an agreement regarding the terms of a settlement.

It further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

23. For these reasons, the Commission adopted the present Report.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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SAMKOVA v. THE SLOVAK REPUBLIC

SAMKOVA v. THE SLOVAK REPUBLIC