AS TO THE ADMISSIBILITY OF

Application No. 33706/96

by E. P.

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting in private on 9 September 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 October 1996 by E. P. against the Slovak Republic and registered on 7 November 1996 under file No. 33706/96;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak national born in 1936.  She is retired and resides in KoÅ¡ice .

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

A. The particular circumstances of the case

In 1984 the applicant's husband started using a cottage jointly owned by him and the applicant with his new partner and prevented the applicant from acceding to it.  In 1985 the applicant brought proceedings claiming that she should be allowed to use the aforesaid property on equal footing with her husband.

On 19 November 1987 the Košice-vidiek District Court ( Okresný súd ) delivered a judgment, but it was quashed by the Košice Regional Court ( Krajský súd ) on 31 August 1988.  Subsequently, the applicant repeatedly complained to the president of the District Court that the proceedings lasted unreasonably long.

On 27 December 1990 the applicant and her husband were divorced.  The proceedings concerning the separation of their marital property are still pending.

On 11 March 1992 the KoÅ¡ice-vidiek District Court delivered a new judgment on the applicant's action of 1985 in which it ordered that prior to the delivery of a final decision concerning separation of their marital property, the applicant was entitled to use the cottage in question every even week and her former husband every odd one, and that each of the former spouses was entitled to use half of the garden adjacent to the cottage.  The court further decided to deal with the  counter-claim lodged by the applicant's former husband which concerned the use of an apartment in KoÅ¡ice jointly owned by him and the applicant in separate proceedings.

Both the applicant and her former husband appealed.  The latter alleged, inter alia , that he permanently lived in the cottage in question and that the applicant continued to live in the aforesaid apartment in Košice .

On 26 January 1993 the Košice-vidiek District Court delivered a decision by which it rectified the text of its judgment of 11 March 1992.

On 13 July 1993 the District Court refused to exempt the applicant's former husband from the obligation to pay court fees.

On 17 May 1994 the Košice Regional Court modified the relevant part of the first instance judgment in that it dismissed the applicant's request for granting her use of the real property in question.  The Regional Court established that since 1987 the applicant's former husband had his permanent address in the cottage in question where he lived together with his new wife, and that the cottage was equipped with the belongings of the aforesaid couple who bred animals on the estate.

The Regional Court further found that, due to a lasting disease requiring permanent assistance of a third person, the applicant could not use the cottage and the adjacent garden properly and that tensions existed between her and the new family of her former husband.  The court concluded that from the practical point of view it was impossible for the applicant to use the property along with her former husband and his wife.  It further considered that granting the applicant's request would amount to an abuse of rights and be contrary to boni mores within the meaning of Section 3 of the Civil Code (see "Relevant domestic law" below).  In its judgment the Regional Court pointed out that it had decided on the case pursuant to Section 146 of the Civil Code.

On 24 June 1994 the applicant lodged an appeal on points of law.  She complained that the Regional Court had not established the facts correctly and had decided arbitrarily.

On 23 December 1994 the Supreme Court ( Najvyšší súd ) quashed the Regional Court's judgment of 17 May 1994.  It held that in proceedings pursuant to Section 146 of the Civil Code a court cannot merely dismiss an action but has to determine in an express manner the extent to which each of the joint owners can exercise the rights at issue.

On 7 March 1995 the KoÅ¡ice Regional Court modified the relevant part of the KoÅ¡ice-vidiek District Court's judgment of 11 March 1992 in that it entitled the applicant's former husband to use the cottage and garden in question until division of his and the applicant's marital property.  The Regional Court noted that no relevant new circumstances had occurred in the case after the delivery of its judgment of 17 May 1994.

The Regional Court further found that the new wife of the applicant's former husband enjoyed the same rights as her husband and dismissed the applicant's request that she should be prevented from entering the property at issue.

On 31 May 1995 the applicant lodged an appeal on points of law.  She claimed, inter alia , that the Regional Court had decided erroneously and that it should have ordered her former husband to pay compensation to her.

On 23 February 1996 the Supreme Court dismissed the applicant's appeal on points of law.  It found that the Regional Court had  established all relevant facts of the case including the use of other property jointly owned by the applicant and her former husband, and that it had correctly assessed the evidence before it.

B. Relevant domestic law     

Pursuant to Section 3 para . 1 of the Civil Code, the exercise of civil rights and obligations must not, unless there is a relevant legal ground for it, interfere with justified rights and interests of others and it must not be contrary to boni mores. Para . 2 of the same Section provides, inter alia , that public authorities shall ensure that civil rights and obligations are not infringed.

In accordance with Section 146 of the Civil Code, a court shall determine, upon the proposal of one of the spouses, the rights and obligations relating to assets forming community of the marital property.

COMPLAINTS

The applicant complains that the above proceedings concerning the use of property jointly owned by her and her former husband lasted unreasonably long and that the dismissal of her action was unfair.  She alleges a violation of Article 6 para . 1 of the Convention.

The applicant further alleges a violation of Article 1 of Protocol No. 1 in that the courts granted the right to use the real property of which she is a co-owner exclusively to her former husband, that she was granted no compensation in this respect, and that the courts refused to forbid the wife of her former husband to use the property at issue.

Finally, the applicant complains under Article 5 of Protocol No. 7 that she cannot use the property at issue under the same conditions as her former husband.

THE LAW

1. The applicant complains that the proceedings concerning her case lasted unreasonably long and that the dismissal of her claim was arbitrary.  She alleges a violation of Article 6 para . 1 of the Convention which provides, in so far as relevant, as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by a[n] ... tribunal established by law."

...

a) As regards the applicant's complaint concerning the length of the proceedings, the Commission does not consider it necessary to examine whether the applicant has complied with the requirement as to the exhaustion of domestic remedies since this part of the application is in any event inadmissible for the following reasons.

The Commission notes that although the proceedings were brought in 1985, it can only examine them as from 18 March 1992 when the former Czech and Slovak Federal Republic ratified the Convention and recognised the right of individual application.  However, in assessing the reasonableness of the time that elapsed after 18 March 1992, account must be taken of the state of the proceedings at that time (see Eur . Court HR, Baggetta v. Italy judgment of 25 June 1978, Series A no. 119, p. 32, para . 20).

The final decision in the applicant's case was delivered by the Supreme Court on 23 February 1996.  Thus, the period to be considered amounts to three years, eleven months and five days.

The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular  circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur . Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para . 30).

In the present case the Košice-vidiek District Court rectified, on 26 January 1993, its judgment of 11 March 1992.  Following the parties' appeal this judgment was modified, on 17 May 1994, by the Košice Regional Court.  On 24 June 1994 the applicant lodged an appeal on points of law and the Supreme Court quashed, on

23 December 1994, the Regional Court's judgment.  The latter delivered a new judgment on 7 March 1995.  On 31 May 1995 the applicant lodged an appeal on points of law which the Supreme Court dismissed on 23 February 1996.

The Commission has noted that there were certain delays in the proceedings during the period under consideration which were apparently due to the way in which the courts dealt with the case.  However, notwithstanding these delays, the Commission considers, in the light of the aforesaid criteria established by the case-law and having regard to the circumstances of the present case as well as the state of the proceedings at 18 March 1992, that the length of the proceedings in question did not exceed the "reasonable time" requirement set out in Article 6 para . 1 of the Convention.             

b) As to the applicant's complaint that the courts' decision on her claim is arbitrary, the Commission recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.  In particular, it is not competent to deal with applications concerning errors of law or fact allegedly committed by the competent national authorities, to whom it falls, in the first place, to interpret and apply domestic law.  The Commission is not competent to look into allegations concerning such errors except where, and to the extent that, they seem likely to have entailed a possible violation of any of the rights and freedoms set out in the Convention (see, e.g., No. 25062/94, Dec. 18.10.95, D.R. 83-A, pp. 77, 86).

In the present case the Regional Court concluded, on the basis of the evidence before it, that from the practical point of view it was impossible for the applicant to use the property along with her former husband and his wife and that granting her action would amount to an abuse of rights and be contrary to boni mores within the meaning of Section 3 of the Civil Code.  In its judgment of 23 February 1996 the Supreme Court found that the Regional Court had established all relevant facts of the case including the use of other property jointly owned by the applicant and her former husband, and had correctly assessed the evidence before it.

The Commission considers that the reasons on which the courts based their above decisions are sufficient to exclude the assumption that the evaluation of the evidence had been unfair or arbitrary.  Furthermore, the Commission has before it no information that would indicate that the proceedings leading to the decision complained of did not conform to the requirements of Article 6 para . 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention.

2. The applicant further complains that the courts granted the right to use the real property of which she is a co-owner exclusively to her former husband, that no compensation was granted to her in this respect, and that the courts refused to forbid the wife of her former husband to use that property.  She alleges a violation of Article 1 of Protocol No. 1 which provides 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 Commission recalls 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 peaceful enjoyment of possessions.  The second rule, contained in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions.  The third rule, stated in the second paragraph, recognises that Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest (see Eur . Court HR, Fredin v. Sweden judgment of 18 February 1991, Series A no. 192, p. 14, para . 41).

In the present case the courts granted to the applicant's former husband the right of use of several assets forming part of his and the applicant's marital property pending its separation.  The Commission considers that this interference constitutes control of the use of the applicant's property within the meaning of the second paragraph of Article 1 of Protocol No. 1.

The Commission recalls that under the aforesaid provision States are entitled, amongst other things, to control the use of property in accordance with the law and the general interest.   However, there must exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised .  In striking the fair balance thereby required between the general interest of the community and the requirements of the protection of the individual's fundamental rights, the authorities enjoy a wide margin of appreciation (see Eur . Court HR, Allan Jacobsson v. Sweden judgment of 25 October 1989, Series A no. 163, p. 17, para . 55, with further references).

The Commission observes that the decision contested by the applicant was delivered pursuant to Section 146 of the Civil Code under which a court shall determine, upon the proposal of one of the spouses, the rights and obligations relating to assets forming the community of their marital property.  Thus, the interference complained of was in accordance with Slovak law.

As to the requirement that the control of use of property be in the general interest, the Commission considers that a measure aimed at controlling the use of property in pursuance of legitimate social, economic or other policies may be in the public interest, even if the community at large has no direct use or enjoyment of the property (see, mutatis mutandis , Eur . Court HR, James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 32, para . 45).  Moreover, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is "in accordance with the general interest".

The Commission notes that the decision at issue aimed at ensuring, in accordance with Section 3 of the Civil Code, that the applicant and her former husband do not interfere with each other's justified rights and interests concerning the property which they continued to jointly own after their divorce.  Thus, the interference had for its purpose to ensure respect for civil rights and obligations which is not only in the interest of the individuals concerned, but also in the interest of the society as a whole.  Accordingly, the Commission considers that the control of use of the applicant's property was also in the general interest as envisaged in Article 1 of Protocol No. 1.

As to the requirement that a reasonable relationship of proportionality between the means employed and the aim sought to be realised must exist, the Commission notes that the domestic courts established that the applicant's former husband permanently lived in the cottage and used the property with his wife, that the cottage was equipped with the belongings of the aforesaid couple and that tensions existed between the couple and the applicant.

The courts found that from the practical point of view it was impossible for the applicant to use the property along with her former husband and his wife.  They also noted that the applicant continued to live in an apartment in Košice which was jointly owned by her and her former husband.

Finally, the Slovak courts held that the wife of the applicant's former husband enjoyed the same rights as her husband and dismissed the applicant's request that she should be prevented from entering the property at issue.

In view of the above facts and the wide margin of appreciation enjoyed by the Contracting States in this area, and given that the applicant has the possibility of claiming compensation for the use of the property in question by her former husband in the proceedings concerning the separation of their marital property which are still pending, the Commission considers that the decision at issue may be regarded as proportionate to the legitimate aim pursued.

Accordingly, there is no appearance of a violation of Article 1 of Protocol No. 1 in the particular circumstances of the case.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention.

3. Finally, the applicant complains that she cannot use the property at issue on an equal footing with her former husband.  She alleges a violation of Article 5 of Protocol No. 7 which provides as follows:

"Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution.  This Article shall not prevent States from taking such measures as are necessary in the interests of the children."

In the Commission's view, Article 5 of Protocol No. 7 does not prevent the domestic authorities from taking due account of all relevant factors when reaching decisions with regard to use of marital property pending its division in the event of dissolution of marriage.

In the present case the courts granted to the applicant's former husband the exclusive right to use several assets forming a part of his and the applicant's marital property pending its division.  The courts established that from the practical point of view it was impossible for the applicant to use the property along with her former husband and his wife, and that granting the applicant's action would amount to an abuse of rights.  The Commission has found above that this conclusion was neither unfair not arbitrary.

Furthermore, the courts noted that the applicant's former husband permanently lived in the cottage in question and that the applicant continued to live in an apartment which she also owned jointly with her  former husband.

In these circumstances, the Commission considers that the decision complained of can be regarded as being compatible with the requirements of Article 5 of Protocol No. 7.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

   M.-T. SCHOEPFER                                                          J.-C. GEUS

      Secretary                                                                            President

to the Second Chamber                                                 of the Second Chamber