Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26384/95

by Mária SAMKOVÁ

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 26 June 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

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 10 November 1994

by Mária SAMKOVÁ against the Slovak Republic and registered on

2 February 1995 under file No. 26384/95;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

17 November and 5 December 1995, and the observations and

supplement to the observations in reply submitted by the

applicant on 29 January 1996 and 11 March 1996 respectively;

Having deliberated;

Decides as follows:

THE FACTS

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

and resides in Dolné Vestenice. Before the Commission the applicant

is represented by Mr. J. Maly, a lawyer practising in Bratislava.

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

summarised as follows.

A. Particular circumstances of the case

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.

In 1991 the applicant claimed restitution of the expropriated

land pursuant to Section 6 para. 1 (m) and (r) of the Land Ownership

Act (see "The relevant domestic law and practice" below"). As the

administration of the zoological garden refused to restore the

property, the applicant claimed restitution before the Bratislava Land

Office (Pozemkovy úrad - "the Land Office") pursuant to Section 9

para. 4 of the Land Ownership Act.

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.

On 25 January 1994 the Head of the Property Administration

Section of the Bratislava City Council (Magistrát) informed the Land

Office that the land claimed by the applicant was used for the purpose

for which it had been expropriated.

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. The decision was

signed by the Head (prednosta) of the Land Office.

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

City Court (Mestsky súd). 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.

The applicant 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.

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.

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.

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.

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.

The applicant lodged a complaint with the Supreme Court (Najvyssí

súd) 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.

B. Relevant domestic law and practice

1. The Constitution, the Constitutional Court Act and the

Constitutional Court's case-law

Article 48 of the Constitution provides as follows:

(Translation)

"1. No one may be deprived of his or her judge. The jurisdiction

of courts shall be defined by law."

2. Every person has the right to have his or her case tried

publicly without unreasonable delay, to be present at the

proceedings, and to challenge any evidence given therein. The

public can only be excluded in cases specified by law."

The jurisdiction of the Constitutional Court and the proceedings

before it are governed, inter alia, by the following provisions of the

Constitution:

(Translation)

Article 127

"The Constitutional Court shall decide on complaints against

final decisions made by central government authorities, local

government authorities and local self-governing bodies in cases

concerning violations of fundamental rights and freedoms of

citizens, unless the protection of such rights falls under the

jurisdiction of another court."

Article 130

"1. The Constitutional Court shall commence proceedings upon a

proposal [návrh] submitted by:

a) no less than one fifth of all members of the National

Council of the Slovak Republic;

b) the President of the Slovak Republic;

c) the Government of the Slovak Republic;

d) a court;

e) the Prosecutor General;

f) any person whose rights shall be adjudicated pursuant to

Article 127.

...

3. The Constitutional Court may commence proceedings upon a

petition [podnet] submitted by legal entities or individuals

claiming a violation of their rights."

Proceedings before the Constitutional Court are governed in more

detail by Act No. 38/1993 ("the Constitutional Court Act"). It

provides, so far as relevant, as follows:

(Translation)

Section 18

"3. The proceedings shall be instituted

a) on the day of the delivery of the proposal [návrh] to

the Constitutional Court;

b) when a petition [podnet] has been admitted after its

preliminary examination."

Part 4 of the Constitutional Court Act governs the proceedings

concerning constitutional complaints pursuant to Article 127 of the

Constitution. Pursuant to Section 57 of the Act, if the Constitutional

Court finds a violation of a fundamental right and freedom in the

course of such proceedings, it shall quash the decision complained of.

Apart from Section 18 para. 3 (b) and Section 20 para. 2 (which

sets out the formal requirements for lodging a petition) there are no

specific provisions governing the proceedings pursuant to Article 130

(3) of the Constitution in the Constitutional Court Act. The

preliminary examination of a petition referred to in Section 18

para. 3 (b) of the aforesaid Act is held in camera.

In its decision of 7 September 1993 in case No. I. ÚS 26/93

(Collection of the Constitutional Court's judgments and decisions,

1993-1994, No. 10/93) the Constitutional Court held that it "lacks

jurisdiction to quash or to substitute the general courts' decisions

in civil or criminal matters".

In its decision of 2 December 1994 in case No. I. ÚS 59/94

(published in the aforesaid Collection of judgments and decisions under

No. 59/94) the Constitutional Court held, inter alia:

(Translation)

"The Constitutional Court ... is an independent judicial

authority charged with the protection of constitutionality within

its jurisdiction as defined by the Constitution... However, its

jurisdiction does not include the right to quash or amend final

decisions taken by the general courts. The Constitutional Court

cannot interfere with the general courts' jurisdiction and cannot

act as an appellate court in matters which are within the

jurisdiction of the general courts. An interference with the

proceedings before the general courts or with their decision-

making would amount to a violation of the constitutional

principle of independence and impartiality of such courts ... as

well as of the principle of independence of their judges..."

On 28 February 1994 the Constitutional Court delivered a judgment

(nález) in case No. I. ÚS 8/94 (published in the aforesaid Collection

of judgments and decisions under No. 1/94) in which it found, upon a

petition introduced by a natural person, a violation of the

petitioner's right not to be deprived of his judge guaranteed by

Article 48 para. 1 of the Constitution. The violation found consisted

in the fact that a complaint concerning elections had been decided on

its merits by a judge of a District Court (Okresny súd) whereas

according to the relevant law such a complaint was within the

jurisdiction of the Supreme Court.

In its judgment in case No. II. ÚS 26/95 of 25 October 1995 the

Constitutional Court found a violation of the petitioner's right to

have his case tried without unreasonable delay guaranteed by Article

48 para. 2 of the Constitution.

2. The State Liability Act

Pursuant to Section 1 of Act No. 58/1969 on Liability for Damage

Caused by a State Organ's Decision or by an Erroneous Official Act

("the State Liability Act") of 5 June 1969, as amended, the State is

liable, inter alia, for damage caused by an unlawful decision which was

made by a State organ when hearing civil cases.

According to Section 4 para. 1 of the aforesaid Act compensation

for damage cannot be claimed until the competent organ has quashed the

final decision by which the damage was caused.

Section 18 of the Act provides that the State is responsible for

damage caused by erroneous official acts committed by persons who carry

out tasks vested in State organs.

3. The Land Ownership Act

Pursuant to Section 6 para. 1 (m) of Act No. 229/91 on Adjustment

of Ownership Rights in Land And Other Agricultural Property ("the Land

Ownership Act"), real property which was expropriated with payment of

compensation shall be restored if it still exists and has never served

the purpose for which it was expropriated.

Section 6 para. 1 (r) provides for restitution of property if its

owner was deprived of it as a result of political persecution or in a

way which is incompatible with generally recognised human rights and

freedoms.

Section 9 para. 1 provides that a person entitled to restitution

must lodge his or her claim with the appropriate Land Office and at the

same time he or she shall request restitution from the person or entity

possessing the real property at issue. The latter is required to

conclude, within 60 days, an agreement on transfer of the property with

the claimant.

If such an agreement is not reached, the ownership right shall

be established, pursuant to Section 9 para. 4, by the appropriate Land

Office.

4. Legislation relating to the proceedings before Land Offices

Pursuant to Section 32 para. 1 of Act No. 330/91 ("the Land

Offices Act") Land Offices shall exercise functions of the State

relating to the settlement of land property issues in accordance with

Act No. 330/91 and other statutory rules. In accordance with para. 1

(c) of the aforesaid Section, Land Offices also perform functions

relating to restitution of property pursuant to special regulations

including the Land Ownership Act.

Section 33 para. 1 of Act No. 330/91 provides that Land Offices

are "special units" of the Ministry of Food and Agriculture. Pursuant

to para. 2 of the same Section, Land Offices are directed by Heads who

are appointed and recalled by the Minister of Food and Agriculture.

The proceedings before Land Offices are governed by Act

No. 71/1967 (Administrative Proceedings Act).

Sections 3 and 4 of Act No. 71/1967 govern the basic principles

of the proceedings before administrative authorities. Thus, the

proceedings must be conducted in accordance with the law, and

participants must always be given the opportunity to defend effectively

their rights and interests, to challenge the facts of the case and to

make proposals as to the proceedings. Further, the parties must enjoy

equal rights and have the same obligations. The decisions of

administrative authorities have to be based on facts that have been

established in a trustworthy manner.

Section 9 of the Administrative Proceedings Act provides for

exclusion of the administrative organs' officers if their impartiality

is open to doubt or if they participated in their official capacity in

examination of the case at a different level.

Pursuant to Section 21 paras. 1 and 2 of the aforesaid Act, the

administrative authority shall order an oral hearing if it is required

by the nature of the matter, in particular where such a hearing will

contribute to clarification of the matter at issue. If the oral

hearing is related to examination of a site, it should be held on that

site. The parties to the proceedings must be summoned to attend the

oral hearing, and invited to express their comments and proposals in

the course of the hearing.

In accordance with Section 21 para. 3 of Act No. 71/1967, oral

hearings are not public unless a special legal rule provides or the

administrative authority decides otherwise.

Pursuant to Section 32 of Act No. 71/1967, administrative

authorities are under the obligation to establish all facts accurately

and comprehensively. For that purpose they have to obtain all

necessary supporting documents and data.

Section 33 of Act No. 71/1967 entitles the participants to

propose the taking of evidence or supplementary evidence and to

question witnesses and experts in the course of the oral hearing or

during the examination of the site. The parties must be given an

opportunity to comment on the facts and the way in which they have been

established, and to make further proposals.

5. The Code of Civil Procedure

The lawfulness of the decisions of administrative organs can be

examined by courts in accordance with Part 5 of the Code of Civil

Procedure which governs the administrative judiciary.

Section 250f entitles the courts to deliver a judgment without

prior oral hearing in simple cases, in particular when there is no

doubt as to whether the administrative organ established the facts

correctly, and the point at issue is a question of law.

Pursuant to Section 250i para. 1, the courts must, when reviewing

administrative organs' decisions, take into consideration the facts as

they existed at the moment when the decision at issue was taken.

In accordance with Section 250m para. 3, the participants in the

proceedings before the court are the parties in the proceedings before

the administrative authority and the administrative authority itself,

whose decision is to be reviewed.

Pursuant to Sections 250q and 250r, a court examining an

administrative authority's decision can either uphold or quash it. If

the decision was not taken pursuant to Section 250f or if the

administrative authority did not issue a new decision satisfying the

plaintiff's claim, the court may take such evidence as is necessary for

review of the decision at issue. If the decision is quashed, the case

is sent back to the administrative authority. The latter is bound by

the legal opinion expressed by the court.

COMPLAINTS

The applicant alleges 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 were based exclusively

on the arguments presented by the defendant, (ii) the court reached an

unfair decision because of erroneous interpretation of the law, (iii)

the court refused to hear witnesses and failed to establish the facts

of the case, and (iv) there was no public hearing in her case.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 November 1994 and registered

on 2 February 1995.

On 6 September 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 17

November 1995 and supplemented on 5 December 1995. The applicant

replied on 29 January 1996 and supplemented her submissions on 11 March

1996, after an extension of the time-limit.

On 5 December 1995 the Commission granted the applicant legal

aid.

THE LAW

The applicant alleges a violation of her rights guaranteed by

Article 6 para. 1 (Art. 6-1) of the Convention which reads, so far as

relevant, as follows:

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

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

independent ... tribunal established by law."

a) The Government submit that the applicant has failed to comply

with the requirement as to the exhaustion of domestic remedies laid

down in Article 26 (Art. 26) of the Convention as she did not lodge a

petition to the Constitutional Court pursuant to Article 130 para. 3

of the Constitution. In their view, the aforesaid remedy represents

a means capable of protecting the right to a fair and public hearing

laid down in Article 48 of the Constitution.

In support of their argument the Government invoke the

Constitutional Court's judgments in cases No. I. ÚS 8/94 and No. II.

ÚS 26/95 (see "The relevant domestic law and practice" above). They

add that a Constitutional Court's finding of a violation of a

fundamental right or freedom entitles the person concerned to claim

damages pursuant to Act No. 58/1969.

The applicant contends that the Constitutional Court's judgments

in the cases invoked by the Government are irrelevant because the

merits of her case are different. She submits that the bringing of

proceedings pursuant to Section 130 para 3 of the Constitution is

within the discretionary power of the Constitutional Court.

Further, in such proceedings the Constitutional Court can only

establish whether there was a violation of individual rights guaranteed

by the Constitution. Such a finding does not have any specific impact

on the act or decision complained of. In particular, the

Constitutional Court cannot grant the right at issue or impose any

obligation on the authority concerned. The applicant concludes that

a petition to the Constitutional Court could not reasonably be expected

to be effective in her case.

The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies which are

effective, sufficient and available (cf., e.g., No. 18926/91 and No.

19777/92, Dec. 30.8.93, D.R. 75 pp. 179, 189).

For a remedy to be effective, it must be accessible, i.e. the

person concerned must be able to institute the relevant proceedings

himself (cf. No. 12604/86, Dec. 10.7.91, D.R. 70 p. 125), and it must

be capable of remedying the criticised state of affairs directly, and

not merely indirectly (cf. Eur. Court H.R., Deweer judgment of 27

February 1980, Series A no. 35, pp. 16-17, para. 29). Moreover, a

remedy must exist with a sufficient degree of certainty to be regarded

as effective (cf. No. 11613/85, Dec. 16.5.90, D.R. 65 p. 75).

The Commission first notes that unlike in cases of constitutional

complaints pursuant to Article 127 of the Constitution, the proceedings

pursuant to Article 130 para. 3 of the Constitution are considered as

being instituted only if the Constitutional Court, after a preliminary

examination of the petition, decides to admit it. Thus, although the

person concerned can lodge a petition directly to the Constitutional

Court, the formal institution of proceedings depends on the latter's

decision.

The Commission further notes that in the judgment in case No. I.

ÚS 8/94 of 28 February 1994 the Constitutional Court found a violation

of the right guaranteed by Article 48 para. 1 of the Constitution due

to the fact that a court had decided on a matter in which it lacked

jurisdiction under Slovak law. Further, in its judgment in case No.

26/95 of 25 October 1995 the Constitutional Court found a violation of

the petitioner's right to have his case tried without unreasonable

delay guaranteed by Article 48 para. 2 of the Constitution.

However, in the applicant's case the decision not to hold an oral

hearing was taken pursuant to Section 250f of the Code of Civil

Procedure, i.e. the taking of such a decision was within the competence

of the judge. The Commission recalls in this respect that the

Constitutional Court has held on several occasions that it cannot

interfere with the decisisions of the general courts, nor can it act

as an appellate court in matters which are within the jurisdiction of

the general courts.

Finally, the Commission considers that even a possible

Constitutional Court finding of a violation of the applicant's right

to a fair and public hearing would not be capable of remedying the

criticised state of affairs directly as the Constitutional Court lacks

jurisdiction to quash the general courts' decisions. Thus, the

Constitutional Court could not afford redress for the violation of the

Convention alleged by the applicant even if the latter were successful

in the proceedings pursuant to Article 130 para. 3 of the Constitution.

It is true that the applicant could then claim damages pursuant

to the State Liability Act. However, pursuant to Section 4 para. 1 of

the aforesaid Act compensation for damage caused, inter alia, by an

unlawful decision which was made by a State organ when hearing civil

cases cannot be claimed until the competent organ has quashed the final

decision by which the damage was caused, and the Constitutional Court

lacked jurisdiction to quash the Bratislava City Court's judgment of

11 May 1994.

As to the possibility of claiming damages pursuant to Section 18

of Act No. 58/1969 (i.e. on the ground that the acting of the judge

dealing with the applicant's case was erroneous), and even assuming

that the award of damages could be considered as a direct remedy to the

alleged breach of the applicant's rights, the Government have not cited

a single example of case-law to show that such an action had any

genuine prospect of success (cf, mutatis mutandis, 11282/84, Dec.

12.11.87, D.R. 54 pp. 70, 86).

In the light of the foregoing the Commission does not consider

that a petition pursuant to Article 130 para. 3 of the Constitution

could have been regarded with a sufficient degree of certainty as an

effective remedy in the applicant's case. Accordingly, the

Government's objection relating to non-exhaustion of domestic remedies

cannot be upheld.

b) As to the merits of the application, the Government consider that

Article 6 (Art. 6) of the Convention is applicable to the present case.

They submit that at first instance the applicant's claim was dealt with

by the Bratislava Land Office pursuant to Section 9 para. 4 of the Land

Ownership Act, i.e. by an impartial and independent administrative

authority.

The Government refer to the relevant provisions of the

Administrative Proceedings Act (cf. "The relevant domestic law and

practice" above, para. 4) and submit that they provided sufficient

guarantees for the applicant's case to be heard in conformity with the

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

The Government submit that the Bratislava Land Office dealt with

the applicant's case in accordance with the aforesaid provisions.

Thus, apart from the examination of the site at issue which was

connected with an oral hearing, the Land Office also took other

evidence by requesting the views of the Bratislava City Council. The

applicant was notified of all procedural steps taken by the Land

Office.

Furthermore, the Government point out that in the context of

appellate proceedings the Bratislava Land Office held a second

examination of the site at issue which was connected with an oral

hearing pursuant to Section 21 of the Administrative Proceedings Act.

As there were no relevant new facts established, the applicant's appeal

was submitted for a decision to the Bratislava City Court. The latter

considered that the facts of the case had been established by the Land

Office correctly. For this reason it decided the case pursuant to

Section 250f of the Code of Civil Procedure without ordering an oral

hearing.

In the Government's view, the requirement of a fair and public

hearing by an independent and impartial tribunal laid down in Article

6 para. 1 (Art. 6-1) of the Convention has been complied with in the

proceedings before the Bratislava Land Office. The Government submit

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

were less strict in the proceedings before the Bratislav City Court as

the latter dealt with the applicant's case at second instance. They

conclude that the absence of an oral hearing before the Bratislava City

Court was not, in view of the particular circumstances of the case,

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

The applicant contends that there was no fair and public hearing

before an independent and impartial tribunal in her case. She submits

that the Land Office did not establish the facts correctly and that she

was not given the opportunity to have this shortcoming redressed. In

particular, she contends that her comments concerning the plot at issue

made during the examination which was held on 7 April 1992 were not

included in the record. Moreover, the record did not make any mention

of the examination having taken place on the applicant's former plot

on that day.

Since the record served as the basis for the Land Office's

decision, the applicant was obliged to seek redress before the

Bratislava City Court which decided without taking the evidence

suggested by her. The applicant submits that the second examination

of the site which was held on 24 March 1994 in the context of appellate

proceedings could not establish the facts as they had existed during

the relevant period.

After an examination of these issues in the light of the parties'

submissions, the Commission considers that they raise questions of fact

and law which can only be determined by an examination of the merits.

It follows that the applicant's complaints cannot, therefore, be

declared inadmissible as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds of inadmissibility have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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SAMKOVÁ v. THE SLOVAK REPUBLIC

SAMKOVÁ v. THE SLOVAK REPUBLIC

LEXI