Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32683/96

by Elena NEMANOVÁ

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 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

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

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 29 March 1996 by

Elena NEMANOVÁ against the Slovak Republic and registered on 21 August

1996 under file No. 32683/96;

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 1909. She is retired

and resides in Banská Bystrica.

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

summarised as follows.

A. The particular circumstances of the case

The applicant owned a three-storey house comprising several flats

in Banská Bystrica. On 25 May 1976 the applicant requested that the

local tax in respect of the house be reduced. On 24 June 1976 the

National Committee (Národny vybor) in Banská Bystrica dismissed the

request. It noted that the applicant had had an opportunity to sell

the house.

In a letter of 2 June 1976 addressed to the National Committee

in Banská Bystrica the applicant stated, inter alia, that the

maintenance of the house caused considerable difficulties to her and

that she had therefore decided to sell it to the Slovak Television.

She requested, with reference to Section 13 para. 2 of Regulation

No. 47/1969 (see the "Relevant domestic law" below), that an exception

be granted and the permissible compensation for her house be increased

up to 455,638 Czechoslovak crowns. The applicant explained that the

amount of the compensation she requested had been established on the

basis of an expert opinion and that the Slovak Television was prepared

to pay it to her.

On 29 June 1976 the applicant signed a contract by which she sold

her house to the Slovak Television.

In his opinion of 12 August 1976, elaborated at the request of

Slovak Television, an expert stated that the real value of the

applicant's house was 1,640,077 Czechoslovak crowns.

On 18 November 1976 the National Committee in Banská Bystrica

agreed that the sale price be increased to 436,745 Czechoslovak crowns.

On 19 November 1976 the contract was amended accordingly.

On 2 June 1993 the applicant requested before the Banská Bystrica

District Court (Okresny súd) that the contract of 29 June 1976 be

declared void. She claimed that she had signed the contract under

pressure which had been exercised upon her by representatives of

political and State authorities and that the sale price had not

corresponded to the real value of the house.

A witness confirmed that a representative of the National

Committee had told the applicant that selling the house had become a

political necessity for her and that if she refused to sell it, it

would be transferred to State ownership under Law No. 71/1959. The

witness further confirmed that subsequently the applicant had explained

to him that the pressure had made her depressed and that she had had

no other possibility but to sell the house.

Another witness, the applicant's doctor, stated that she had been

present when a representative of the National Committee had insisted

that the applicant sell the house. The applicant had suggested that

another house be chosen, claimed that she had no other place to live

and finally burst into tears.

A third witness stated that the applicant had been threatened

with dispossession and removal from the town should she refuse to sell

the house and that she had been charged high local taxes.

The former president of the National Committee in Banská Bystrica

stated that the representative of the National Committee who had

allegedly exercised pressure on the applicant had not been in charge

of the sale of the house. Another witness stated that an acquaintance

of the applicant had informed him about the applicant's wish to live

in a flat as she had had difficulties in maintaining the house.

The District Court requested a second expert opinion as regards

the compensation paid to the applicant. The second expert evaluated

the compensation to which the applicant had been entitled at 437,274

Slovak crowns.

On 26 June 1995 the District Court found that the applicant had

not concluded the contract under pressure as the representative of the

National Committee who had allegedly forced her to sell the house had

not been in charge of the sale. The court further held that even if

the contract had been concluded under pressure, the applicant could

have revoked it within three years after its conclusion.

As to the sale price, the District Court noted that it had been

fixed in accordance with the relevant rules then in force and in

conformity with an expert opinion which had been later confirmed by a

second expert. The applicant's action was declared manifestly ill-

founded.

The applicant appealed. She challenged the statements of the

witnesses who had alleged that the representative of the National

Committee in Banská Bystrica in question had not been in charge of the

sale and that the she had expressed her wish not to live in the house.

The applicant further claimed that it was irrelevant for which

price she had sold the house as the very fact that she had sold it

under pressure was sufficient for declaring the contract void. She

submitted that the political climate of Czechoslovakia in the mid-

seventies had rendered it impossible for her to revoke the contract

within three years. Finally, the applicant requested that leave to

appeal on points of law should be granted to her in case the appellate

court dismissed her appeal.

On 5 October 1995 the Banská Bystrica Regional Court (Krajsky

súd) upheld the District Court's judgment.

In the Regional Court's view, the fact that a representative of

the National Committee had informed the applicant that the flat would

be taken away from her under Law No. 71/1959 if she failed to sell it

could not be considered as undue pressure as the possibility of

expropriating real property had always been provided for in Slovak law.

The Regional Court also referred to the applicant's statements made in

her letter of 2 June 1976 and held that the applicant had concluded the

contract of her free will.

The Regional Court further recalled that by its decision of 18

November 1976 the National Committee had agreed, upon a request lodged

by the Slovak Television, that the sale price be increased to 436,745

Czechoslovak crowns pursuant to Regulation No. 47/1969. Furthermore,

the second expert opinion had confirmed that the sale price conformed

to the relevant regulations. Finally, the Regional Court noted that

the applicant could have revoked the contract within an extinctive

period of three years.

On 12 November 1995 the applicant complained that in its judgment

of 5 October 1995 the Regional Court had not dealt with her request

that leave to appeal on points of law be granted to her. On

22 November 1995 the president of the Regional Court's chamber informed

the applicant that the court had not granted the applicant's request

as it considered that the decision in her case had not concerned an

issue of exceptional legal importance within the meaning of Section 238

para. 2 (a) of the Code of Civil Procedure. She further pointed out

that the assessment of the importance of a case in this respect was

within the discretionary power of the court.

On 30 January 1996 the Minister of Justice refused to lodge an

appeal on points of law on the applicant's behalf.

B. The relevant domestic law

Law No. 71/1959 on Measures Concerning Certain Houses in Private

Ownership provided for appropriate maintenance of privately owned

houses comprising flats rented to individuals. It entitled national

committees to carry out necessary maintenance of such houses even if

the owner disagreed. If the owner failed to pay compensation for the

maintenance and his debt in this respect exceeded two thirds of the

value of the house prior to the repairs, the competent national

committee was entitled to transfer the house into State ownership.

Regulation No. 47/1969 governed the prices of buildings owned by

individuals and compensation in case of their expropriation. Under

Section 13 para. 2 national committees were entitled to agree

compensation to amounts of up to the value of a family house the

surface of which does not exceed 120 square metres.

Section 37 para. 1 of the Civil Code provides that, in order to

be valid, a legal act has to be carried out freely, with serious

intention, clearly and certainly.

Pursuant to Section 399 para. 1 of the Civil Code, as in force

at the relevant period, the sale price agreed between the parties could

not exceed the maximum permissible price under the price regulations

in force.

Section 238 para. 2 (a) of the Code of Civil Procedure provides

that an appeal on points of law is permissible if an appellate court,

in its judgment by which a first instance judgment was upheld,

expressly states that an appeal on points of law can be lodged as the

decision in question is of exceptional legal importance.

COMPLAINTS

The applicant complains about the dismissal of her request that

the contract of 29 June 1976 be declared void and about the Regional

Court's failure to examine her request for leave to appeal on points

of law. She alleges a violation of Article 6 para. 1 of the Convention

and of Article 1 of Protocol No. 1.

THE LAW

1. The applicant complains about the courts' decisions in her case

and about the refusal to grant leave to appeal on points of law to her.

She alleges a violation of Article 6 para. 1 (Art. 6-1) of the

Convention which provides, insofar as relevant, as follows:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair ... hearing by an independent and

impartial tribunal established by law."

...

As to the applicant's complaint that the courts refused to

declare void the contract by which she had sold her house, the

Commission recalls that, in accordance with Article 19 (Art. 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 courts concluded, on the basis of the

evidence before them, that the applicant had not been put under undue

pressure that would justify declaring the contract in question void.

In particular, the District Court relied on the evidence of the

former president of the National Committee in Banská Bystrica according

to which the person who had allegedly exercised pressure on the

applicant had not been in charge of the sale of her house.

The Regional Court found, with reference to the applicant's

letter of 2 June 1976 indicating that the applicant had had

difficulties in maintaining the house and that she had wished to sell

it to the Slovak Television, that the applicant had not concluded the

contract under pressure. In the Regional Court's view, the fact that

a representative of the National Committee in Banská Bystrica had

informed her that the flat would be taken away from her under Law

No. 71/1959 if she failed to sell it could not be considered as undue

pressure as Slovak law had always provided for expropriation of real

property.

Finally, both courts dealing with the applicant's claim found

that the sale price had been fixed on the basis of an expert opinion

and had conformed to the price regulations then in force. This fact

was confirmed by a second expert opinion submitted at the request of

the District Court.

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 arbitrary. Furthermore,

the Commission has before it no information that would indicate that

the proceedings leading to the decisions complained of did not conform

to the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.

To the extent that the applicant complains that she was not

granted leave to appeal on points of law and that the Regional Court

failed to state its reason for the dismissal of her request in this

respect, the Commission notes that under Section 238 para. 2 (a) of the

Code of Civil Procedure an appellate court may, when it confirms a

first instance judgment, grant leave to appeal on points of law to the

parties in the proceedings if it considers that the case raises an

issue of exceptional legal importance.

Such a decision falls within the discretionary power of appellate

courts and, accordingly, Slovak law did not entitle the applicant to

lodge an appeal on points of law on her own accord. Furthermore, the

Commission notes that Slovak law neither sets specific criteria for

assessment of the importance of a question of law, nor provides that

the courts' considerations in this respect shall be set out in the

judgments rendered by them. Finally, the Commission recalls that

Article 6 para. 1 (Art. 6-1) of the Convention does not guarantee the

right of appeal to a higher court (see No. 13135/87, Dec. 4.7.88,

D.R. 56, pp. 268, 274).

In these circumstances, the Commission considers that the

Regional Court's refusal to grant the applicant's request for leave to

appeal on points of law and its failure to state the reasons for such

a decision did not interfere with the applicant's rights under

Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further alleges a violation of her property rights

in that she had been forced to sell her house and that the courts

refused to declare the contract on the sale void. She invokes

Article 1 of Protocol No. 1 (P1-1) 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 it can examine applications only to

the extent that they relate to events occurring after the Convention

entered into force with respect to the relevant Contracting Party. The

Commission found earlier that it has jurisdiction to examine

applications against the Slovak Republic concerning matters which are

subsequent to 18 March 1992, i.e. the date when the Convention was

ratified by the former Czech and Slovak Federal Republic (see

No. 23131/93, Dec. 4.3.96, D.R. 85-B, pp. 65, 78 and 79).

The Commission notes that the applicant sold her house in 1976,

i.e. long before the aforementioned date. Therefore, the Commission

lacks temporal jurisdiction to examine the circumstances under which

the applicant concluded the contract in question. In this regard, the

Commission recalls that deprivation of property or another right in rem

is in principle an instantaneous act and does not produce a continuing

situation of "deprivation of a right" (see No. 7742/76, Dec. 7.7.78,

D.R. 14, p. 146; No. 23131/93, decision cited above, p. 79).

In the judicial proceedings subsequent to the entry into force

of the Convention with respect to the Slovak Republic the applicant

requested that the contract in question be declared void on the ground

that she had not concluded it of her free will. In fact, under Section

37 of the Civil Code, for a legal act to be valid, it has to be

carried out, inter alia, freely. However, the courts established, for

reasons expressly stated in their judgments, that the applicant had not

concluded the contract under pressure and the Commission has found

above that this decision was not arbitrary.

Thus the relevant domestic law, as interpreted and applied by

Slovak courts, did not entitle the applicant to have the contract

declared void. Her claim in this respect cannot, therefore, be

considered as a "possession" within the meaning of Article 1 of

Protocol No. 1 (P1-1) (see, mutatis mutandis, Eur. Court HR, Pressos

Compania Naviera S.A. and Others v. Belgium judgment of 20 November

1995, Series A no. 332, p. 21, para. 31; No. 23131/93, decision cited

above, p. 65). The Commission further recalls that Article 1 of

Protocol No. 1 (P1-1) applies only to existing possessions and it does

not guarantee any right to acquire property (see No. 11628/85, Dec.

9.5.86, D.R. 47, p. 271, with further references).

It follows that this part of the application falls outside the

scope of Article 1 of Protocol No. 1 (P1-1) and must be rejected as

being incompatible ratione materiae with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

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

Secretary President

to the Second Chamber of the Second Chamber

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NEMANOVA v. THE SLOVAK REPUBLIC

NEMANOVA v. THE SLOVAK REPUBLIC

LEXI