Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24505/94

by Stefan BEKE

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 19 October 1995, the following members being present:

MM. H. DANELIUS, President

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 25 October 1993

by Mr. Stefan BEKE against the Slovak Republic and registered on

29 June 1994 under file No. 24505/94;

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 citizen born in 1950. He is an

accountant and resides in Komárno.

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

summarised as follows.

The particular circumstances of the case

The applicant was involved in several sets of court proceedings

concerning his divorce and ancillary matters. The proceedings were

held before the Komárno District Court (Okresny súd) at first instance

and the Bratislava Regional Court (Krajsky súd) at second instance.

In three cases the Supreme Court (Najvyssí súd) found the decisions

unlawful and quashed them. The courts then adopted new decisions which

have become final.

On 9 November 1988, pursuant to an order of the Komárno District

Court, items belonging to the applicant were removed from a flat

assigned to his former wife notwithstanding that the applicant had

requested the removal to be postponed on the ground that he was in

hospital. Subsequently the applicant complained that many of his

belongings had been left behind, and that some of the items removed had

been damaged. He refused to collect the items left in the flat as he

considered that the removal had been vitiated by several procedural

irregularities.

On 4 February 1989 the items which had been left in the flat were

placed in the local authority's custody, and the applicant was informed

that he was free to collect them. On 8 January 1990 he was informed

by the Ministry of Justice that the Bratislava Regional Court had been

requested to make the necessary arrangements for return of the items.

It appears from the documents submitted that the applicant later

recovered those items. However, he considers that part of his property

is still in the flat where his former wife lives.

On 26 September 1988 the applicant lodged an action against the

State with the Komárno District Court under Act No. 58/1969 (see below

the relevant domestic law). He completed his submissions to the court

on 7 December 1988 and on 23 October 1992. The applicant claimed

material and non-pecuniary damages resulting from wrong decisions and

procedural defects in proceedings held, between 1984 and 1991, before

the Komárno District Court and the Bratislava Regional Court. The

applicant challenged the Komárno District Court judges for bias (on the

ground that the damage had been caused by this court), and on

29 March 1990 the case was transferred to the Nitra District Court.

The applicant claimed, in particular, that he had suffered damage

since the courts had reached wrong decisions, failed to take the

necessary evidence and to hear the proposed witnesses, relied on false

evidence and had not established the facts properly. He further

claimed damages for misbehaviour of judges, their procedural mistakes

and failure to comply with the Code of Civil Procedure. He proposed

that witnesses (including judges and witnesses from the initial

proceedings) should be heard and evidence taken.

In addition to the aforesaid claim, the applicant also claimed

damages on the ground that the persons who had carried out the Komárno

District Court's order to remove his personal effects had acted

erroneously in that they had committed several procedural mistakes.

He submitted details of the damage which he had suffered.

In 1990 the applicant claimed the damages, on the Nitra District

Court's advice, from the Ministry of Justice pursuant to Section 9 of

Act No. 58/1969. On 5 October 1992 the claim was dismissed, mainly on

the ground that the decisions in question were final and had not been

quashed for unlawfulness. The applicant was informed that he could

claim the damages before a court.

In the proceedings before the Nitra District Court a

representative of the Ministry of Justice denied that the applicant had

suffered any damage by erroneous official acts. She maintained that

this fact was to be established by the court.

On 18 January 1993 the Nitra District Court dismissed the

applicant's claim for damages. It noted that all decisions invoked by

the applicant were final and had not been quashed for unlawfulness.

As to the applicant's claim for damages pursuant to Section 18

of Act No. 58/1969, the court found that no procedural defects had been

established in the proceedings before the Komárno District Court, and

that this fact had been confirmed in several cases by the appellate

court. The Nitra District Court did not consider it necessary to

establish the facts and take further evidence as requested by the

applicant.

On 20 March 1993 the applicant lodged an appeal with the

Bratislava Regional Court. He claimed that, contrary to the Nitra

District Court's finding, the Supreme Court had quashed decisions in

three of his cases on the ground of unlawfulness. He further alleged

that the court at first instance had failed to establish the facts, to

examine the evidence and to hear the witnesses.

The applicant also complained that the Nitra District Court had

not examined the claim for damages in respect of the removal of his

effects. He claimed that his right to property had been violated, and

that the effects had not been returned to him despite the request by

the Ministry of Justice of 8 January 1990 addressed to the Bratislava

Regional Court. The applicant expressly requested that he should be

heard by the appellate court.

On 25 May 1993 the Bratislava Regional Court upheld the first

instance judgment without hearing the applicant. It found that the

applicant's claim did not meet the requirements of Act No. 58/1969

since (i) the decisions at issue had not been declared unlawful, (ii)

in some cases the applicant had failed to exhaust the available

remedies, and (iii) the decisions had not been quashed and were final.

The Regional Court further noted that in the applicant's case the

courts had no jurisdiction to hear witnesses from the initial

proceedings and take evidence anew as suggested by the applicant since

the proceedings at issue had been terminated by decisions which had

become res judicata. In the Regional Court's view it was irrelevant

that in several cases the Supreme Court had quashed the decisions in

question since thereafter the courts gave new decisions. These

decisions had become final and, moreover, on their merits they were

identical with the initial decisions in that the applicant was

unsuccessful in the proceedings.

In its judgment the Bratislava Regional Court gave reasons only

for the dismissal of the applicant's claim for damages in respect of

proceedings in which final decisions exist.

The relevant domestic law

The applicant lodged the action for damages pursuant to Act

No. 58/1969 of 5 June 1969 on Responsibility for Damage Caused by a

State Organ's Decision or by an Erroneous Official Act ("the Act"), as

amended.

Pursuant to Section 1 of the Act the State is responsible, inter

alia, for damage caused by an unlawful decision which was made by a

State organ when hearing civil cases.

According to Section 3 of the Act, damage caused by an unlawful

decision can be compensated, unless it is justified by the particular

circumstances of the case, only if the participant in the proceedings

has exhausted available remedies.

According to Section 4 para. 1 of the Act compensation for damage

cannot be claimed until the competent organ has quashed the final

decision by which the damage had been caused. A decision of the

competent organ is binding for the court which decides on the claim for

damages.

Pursuant to Sections 9 and 10 of the Act a claim for damages in

respect of an unlawful decision in civil cases has to be put first

before the Ministry of Justice. If the claim is not accepted within

six months the claimant can seek recovery (or recovery of any

outstanding part) before a court.

According to Section 18 of the Act the State is responsible for

damage caused by erroneous official acts committed by persons who carry

out tasks vested in State organs.

According to Section 157 para. 2 of the Code of Civil Procedure,

a court shall, while substantiating its judgment, give a summary of

the submissions before it and explain shortly and clearly (i) which

facts it considers as established and which it finds not to be

established, (ii) upon which evidence it founded the facts it had

established, (iii) its considerations in assessment of the evidence,

and (iv) why it did not take further evidence. The court then assesses

the particular circumstances of the case according to the relevant

provisions it applied.

COMPLAINTS

The applicant alleges a violation of Article 6 of the Convention

in the proceedings relating to his action for damages in that:

a) his case was not examined within a reasonable time;

b) the Bratislava Regional Court did not meet the requirement of an

impartial tribunal since the action concerned its earlier decisions;

c) he was deprived of a fair and public hearing since the courts

failed to establish the facts and hear the witnesses, the Nitra

District Court did not give reasons for dismissing the action, he was

not heard by the Bratislava Regional Court, and the courts failed to

examine the claim for damages in respect of the removal of his effects.

The applicant further complains that since 1988 he has been

deprived of the peaceful enjoyment of his possessions in that some of

his belongings remain in the flat where his former wife lives. He

alleges a violation of Article 1 of Protocol No. 1.

THE LAW

1. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention which reads, so far as relevant, as follows:

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

... everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law." ...

a) The applicant first complains of the length of the proceedings

before the Nitra District Court and the Bratislava Regional Court.

The Commission does not consider it necessary to examine whether

the applicant has complied with the requirement as to the exhaustion

of domestic remedies laid down in Article 26 (Art. 26) of the

Convention since this part of the application is in any event

inadmissible for the following reasons.

By reason of its competence ratione temporis the Commission may

only assess the length of the proceedings which fall under the period

since (at the earliest) 18 March 1992 which is the date of the

ratification of the Convention by the former Czech and Slovak Federal

Republic. However, in assessing the reasonableness of the period

following 18 March 1992, it will take into account the state of the

proceedings at that time (cf. Minniti v. Italy, Comm. Report 15.10.87,

para. 39, D.R. 59 pp. 5, 21, with further references).

Since 18 March 1992, the Ministry of Justice has dismissed the

applicant's 1990 claim on 5 October 1992, and the Nitra District Court

has dismissed the action for damages (which the applicant completed on

23 October 1992) on 18 January 1993. On 25 May 1993 the Bratislava

Regional Court upheld this decision.

Under these circumstances, bearing in mind the state of the

proceedings on 18 March 1992 the Commission considers that the

proceedings at issue did not last unreasonably long.

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.

b) The applicant further complains that the Bratislava Regional

Court did not meet the requirement of an "impartial tribunal".

However, it does not appear from the documents submitted that he raised

this issue before the Regional Court. The applicant therefore failed

to comply with the requirement as to the exhaustion of domestic

remedies laid down in Article 26 (Art. 26) of the Convention.

It follows that this part of the application must be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

c) The applicant also alleges that his right to a "fair and public

hearing" was violated.

As to the alleged violation of the applicant's right to a fair

and public hearing in the part of the proceedings which was held before

the Nitra District Court and the Bratislava Regional Court concerning

the claim for damages in respect of earlier court proceedings in which

final decisions exist, the Commission recalls that Article 6 (Art. 6)

of the Convention extends only to "contestations" (disputes) over

(civil) "rights and obligations" which can be said, at least on

arguable grounds, to be recognised under domestic law (cf. Eur. Court

H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no.

121-A, p. 77, para. 73, with further references).

In the present case the domestic courts found that the

applicant's claim did not meet the formal requirements of Act

No. 58/1969 since the decisions at issue had not been declared

unlawful, in some cases the applicant had failed to exhaust the

available remedies, and the decisions had not been quashed and were

final. However, the applicant would have a right to claim damages only

if these requirements were met.

Under these circumstances the Commission considers that there was

no serious dispute over a civil right recognised under domestic law as

far as the applicant's claim for damages in respect of proceedings in

which final decisions exist is concerned. Therefore, Article 6

(Art. 6) of the Convention is not applicable to the proceedings

concerning the aforesaid claim.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

As to the alleged violation of the applicant's right to a fair

and public hearing in the part of the proceedings which took place

before the Nitra District Court and the Bratislava Regional Court

concerning the claim for damages in respect of the execution of the

Komárno District Court's order to remove the applicant's effects (i.e.

the claim pursuant to Section 18 of Act No. 58/1969), the Commission

considers that it cannot, on the basis of the file, determine the

admissibility of this complaint and that it is therefore necessary, in

accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give

notice of this part of the application to the respondent Government.

2. Finally, the applicant alleges that his right to the peaceful

enjoyment of his possessions guaranteed by Article 1 of Protocol No. 1

(P1-1) has been violated in that some of his belongings remain in the

flat where his former wife lives.

The Commission notes that the applicant failed to take any legal

action to recover the property concerned from his former wife.

Therefore, in this respect he has not complied with the requirement as

to the exhaustion of domestic remedies laid down in Article 26

(Art. 26) of the Convention.

It follows that this part of the application must be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the examination of the applicant's

complaint concerning the absence of a fair and public hearing as

regards his claim for damages in respect of the removal of his

property;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

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

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BEKE v. the SLOVAK REPUBLIC

BEKE v. the SLOVAK REPUBLIC

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