FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31519/02 by Milan SÝ KORA against Slovakia

The European Court of Human Rights ( Fourth Section), sitting on 16 October 2007 as a Chamber composed of:

M r J. Casadevall , President , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , Mrs P. Hirvelä,

Mr G. Bonello, judges , and Mr T. L. Early , Section Registrar ,

Having regard to the above application lodged on 8 August 2002 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Milan S ý kora, is a Slovakian national who was born in 1961 and lives in Bratislava . He is represe nted before the Court by Mrs A. Stankovianska, a lawyer practising in Bratislava . The respondent Government were represented by Ms A. Poláčková, their Agent, who was succeeded in that function by Ms M. Pirošíková.

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

The applicant and his wife, Mrs S, were members of the Bratislava IV – Petržalka Housing Cooperative ( bytové družstvo ). In 1985 the cooperative assigned a flat to them. The couple lived in the flat and had the so - called right of joint personal use ( právo spoločného osobného užívania ) of it . This right was later transformed into a joint lease ( spoločný nájom ).

As members of the cooperative the applicant and Mrs S had a membership interest ( členský podiel ) and were gradually paying off their investment contribution in respect of it.

In 1987 Mrs S and the applicant had a daughter.

On 28 January 1992 new special legislation entered into force, namely, the Adjustment of Ownership and Settlement of Claims in Cooperatives Act (Law no. 42/1992 Coll. – “the 1992 Act” ) . It inter alia gave tenants who lived in flats owned by housing cooperatives and who at the same time were members of those cooperatives the right to have the title to the flats transferred to them free of charge (section 24 of the 1992 Act).

In 1992 the applicant and Mrs S lodged a request with the cooperative for the transfer of the flat to them under the 1992 Act.

On 1 September 1993 another piece of special legislation , the Residential and Non-residential P remis es Act (Law no. 182/1993 Coll. – “the 1993 Act”), entered into force. Under that Act individual tenants of publicly owned flats had the right of pre-emption in respect of the flats they lived in. The owners of such flats could in principle sell those flats only to their tenants. The 1993 Act also contained a formula for calculating the price of the flats concerned.

In 1994 the applicant and Mrs S paid off the remainder of their investment contribution to the cooperative.

In 1999 the Bratislava V District Court ( Okresný súd ) pronounced the dissolution of the marriage and approved a parental agreement that Mrs S w ould have custody of the ir daughter and the applicant w ould contribute financially to her maintenance.

On 21 September 2000 the applicant made a fresh request that the cooperative convey the title o f the flat to him under the 1993 Act .

On 13 November 2000 Mrs S brought an action against the applicant in the District Court . She sought the cancellation of her and the applicant ’ s “ right of joint use of the flat ” and a ruling that she was the sole tenant. Mrs S argued that the applicant had left the flat in February 1999 of his own accord and that he had resolved his housing situation by taking a sublease of another flat. By contrast , she was dependant on the flat as she was providing for her daughter and had no other options. Mrs S excluded the possibility of any other arrangement on account of the applicant ’ s character.

On 23 May 2001 the applicant filed his observations in reply. He contended that there was no suitable alternative accommodation available. A cancellation of the right of joint use of the flat and the grant of a sole tenancy in favour of Mrs S was not a fair solution.

The applicant further submitted that the right of tenancy carried with it the right of membership of the cooperative and the right of pre ‑ emption in respect of the flat free of charge or, as the case may be, for a regulated price. While these would be substantial benefits for Mrs S, the applicant would not have equivalent benefits. What was at stake was not merely the possibility of having a place to stay, which was a matter governed by the general provisions of the Civil Code (“the general provisions”), but the proprietary interest in the cooperative and the right of pre-emption in respect of the flat, which were governed by the special provisions of both the 1992 Act and the 1993 Act (“the special provisions”).

The general provisions were based on socialist legal theory according to which no private ownership of flats was in principle possible and the “right to use” was considered equivalent to the current concept of ownership. The general provisions still bore remnants of that theory and disregarded, or at least were not adapted to, the new market-oriented context and the new legal framework concerning circulation of privately held titles to flats. In relation to those provisions, the special provisions were to be considered and applied as leg es special es . Insensitive application of the general provisions without due regard to the special provisions would have unjust and excessive effects on the applicant beyond the object and purpose of the general provisions.

If the sole tenancy of the flat was to be accorded to Mrs S, the applicant would merely have a claim to the lease of an alternative flat, which currently had a different legal character and economic meaning than in the past. The lease would moreover not necessarily be of an unlimited duration and would entail neither membership of a cooperative nor the right of pre-emption. This would be contrary to the constitutional principles of equality before the law and protection of property rights.

The applicant proposed that the courts examine the constitutionality of the general provisions and that they interpret and apply them in conformity with the Constitution. The right of tenancy should be confirmed to be vested in both him and Mrs S. They would consequently become co ‑ owners of the flat and would have several options for reaching an equitable arrangement in respect of the property.

Should the courts find the general provisions unconstitutional or at variance with the special provisions, they should stay the civil proceedings and initiate a review of the constitutionality of the general provisions by the Constitutional Court ( Ústavný súd ).

On 11 June 2001 the District Court held a hearing following which, on the same day, it cancell ed the right of “joint lease of the fla t” held by Mrs S and the applicant and ruled that she was the sole tenant. It further ordered that the applicant vacate the flat within fifteen days f rom the day on which a substitute flat was granted to him.

The District Court considered the written and oral submissions of the parties and complex documentary evidence. It decided the case on the basis of Article 705 § 2 of the Civil Code , pursuant to which if divorced individuals fail ed to reach an agreement concerning the settlement of a joint lease which they had acquired during the marriage, the matter f e ll to be resolved by a court. Pursuant to Article 705 § 3 of the Civil Code the District Court took special account of the interests of the minor daughter and of the owner of the flat . As the applicant did not have any fixed arrangement in respect of his own housing, it was appropriate that he be provided with a lease or a sub-lease of a substitute flat. Pursuant to section 5 (1) and (4) of the Adjustment of certain Lease Arrangements and Substitute Dwelling Act (Law no. 189/1992 Coll.), the substitute flat was to be arranged for by Mrs S.

On 17 July 2001 the applicant appealed against the judgment of 11 June 2001. He reiterated the arguments expressed in his observations of 23 May 2001 and emphasised that since as early as 1992 he had been asserting his right to have the flat transferred to him. The District Court had completely failed to deal with this aspect of the case and had of its own accord arbitrarily changed the subject-matter of the action from one concerning the right of “ joint use ” to one concerning the “joint lease” of the flat. This had upset the equality of arms in the proceedings in favour of the claimant.

On 22 November 2001 the Bratislava Regional Court held a hearing at which it dismissed the applicant ’ s appeal and upheld the challenged judgment. According to the Government, the applicant and his lawyer were present at the hearing and the judgment was pronounced together with its reasoning.

The Regional Court fully endorsed the factual findings and legal conclusions of the District Court. Without further elucidation, the Regional Court moreover found that “as the first-instance decision reflected the existing legislative situation, the applicant ’ s objections as regards the unconstitutionality of the general provisions and the discrepancy between them and the special provisions were unfounded”.

A copy of the Regional Court ’ s judgment was transmitted to the District Court on 14 January 2002 in order for the latter to arrange for the service of the judgment on the parties. The copy of the judgment submitted by the applicant is date stamped 21 February 2002.

No further appeal was available and, upon the service of the Regional Court ’ s judgment on the parties, the matter became res judicata on 21 February 2002.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that he had not had a fair hearing. He complained in particular that the courts had of their own motion changed the subject ‑ matter of the action so as to make it compatible with the established procedural terms and had thus favoured the plaintiff. He also complained that the courts had failed to deal adequately with his arguments as to the unconstitutionality of the applicable Civil Code provisions and the discrepancy between them and the pertinent provisions of the 1992 Act and the 1993 Act .

2. The applicant further complained under Article 1 of Protocol No. 1 that , in excess of the object and purpose of the applicable legal rules, the courts had deprived him not only of his right of joint lease of the flat but also of the right to have the flat transferred to him free of charge or, as the case may be, for a regulated price, and of his share in the cooperative .

THE LAW

1. The applicant complained that the proceedings had fallen short of the requirement of “fairness” under Article 6 § 1 of the Convention , the relevant part of which provides that:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government objected, arguing that the whole application was in the first place belated. They pointed out that the final decision in the present case was pronounced by the Regional Court of 22 November 2001 together with its reasoning in the presence of the applicant and his lawyer. They argued that, for the purposes of Article 35 § 1 of the Convention , the six-month time-limit had commenced on that date. As the application had been lodged no earlier than 8 August 2002, it followed that it was out of time.

The Government further argued that the fairness of the proceedings had to be assessed in view of the proceedings as a whole. They considered that the applicant and his opponent had been treated equally and that, assisted throughout the proceedings by a lawyer, the applicant had been provided with ample opportunity to state his arguments orally or in writing, to challenge the submissions made by his adversary and to submit anything he had considered relevant to the outcome . In their view, the reasons given by the ordinary courts were adequate and sufficient. The Government concluded that the complaint under Article 6 § 1 of the Convention was in any event manifestly ill-founded.

The applicant maintained the complaint but made no response .

The Court recalls in the first place that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six - month period as running from the date of service of the written judgment ( see, for example, Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999-II).

In the instant case the p roceedings concluded with the final judgment of the Regional Court which was pronounced on 22 November 2001 . The written copy of this judgment was however finalised later and served on the parties through the intermediary of the District Court. The latter obtained the final written version of the judgment from the Regional Court on 14 January 2002. The applicant ’ s copy of the judgment is date stamped 21 February 2002 which is the date when the judgment became final and, presumably, when it was served on the applicant. The Government have submitted nothing to show that this is not the case. As the application was lodged on 8 August 2002, it cannot be rejected for being belated.

The Court considers, in the light of the parties ’ submissions, that the complaint under Article 6 § 1 of the Convention raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant also complained that he had been deprived of his right to have the flat transferred to him and of his share in the cooperative in violation of Article 1 of Protocol No. 1, which reads 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 Government acknowledged that upon the lodging in 1992 of the request for transfer of the flat under the 1992 Act the applicant, together with Mrs S, acquired a legitimate expectation that the flat would be transferred to them and that they would become its co-owners with equal shares in the co-ownership. The Government further acknowledged that this legitimate expectation amounted on the applicant ’ s part to a possession and that the granting of the action of Mrs S deprived the applicant of that possession within the meaning of Article 1 of Protocol No. 1.

The Government argued, however, that this deprivation had been lawful and in the public interest and that it had pursue d a legitimate aim by means reasonably proportionate to th at aim .

The granting of the action of Mrs S had been lawfully based on the provisions of Article 705 of the Civil Code. It served the protection of the rights of the applicant ’ s child and Mrs S, in whose custody the child had been placed, and was thus in the public interest, in respect of which the Government claimed to have a wide margin of appreciation.

As to the proportionality test, the Government emphasised that judicial intervention in the housing arrangements of divorced individuals only applied if they failed to settle them by an agreement. In such cases an authoritative solution was indispensable since, by definition, the continued cohabitation of the divorcees was not feasible. A sale and subsequent distribution of the proceeds between the applicant and Mrs S had not been an option considering that, legally speaking, the flat was still owned by the cooperative. In these circumstances the assignment of the lease to one of the former spouses was the sole viable solution and, in applying it, decisive weight had to be and in fact had been given to the interests of the child.

Furthermore, the Government submitted that the settlement of the housing situation on the one hand, and the claim for the transfer of the flat and the interest in the cooperative on the other, were governed by different legal regimes. The former was regulated y the Civil Code, the latter by the 1992 Act and the 1993 Act. According to the Government, it was of relevance that neither the applicant nor Mrs S had actually been pursuing their claim for the transfer of the flat under the special legislation in courts. The applicant had lost his legitimate expectation to become the owner of the flat and, in compensation, he had been accorded the guarantee that he did not have to leave the flat unless and until Mrs S provided him with a substitute flat. Such a substitute flat had to be of comparable size, category and location. Its lease had to be for an unlimited period and for a comparable price and it had to enjoy the same legal protection as that of the flat in question. In view of these considerations, the Government concluded that the Article 1 of Protocol No. 1 complaint was manifestly ill-founded.

The applicant upheld the complaint but submitted nothing in reply .

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The Court finally considers that due administration of justice in the present case requires the application of Article 29 § 3 of the Co nvention to be discontinued .

For these reasons, the Cou rt unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention ;

Declares the application admissible, without pr ejudging the merits of the case.

T.L. Early Josep Casadevall              Registrar              President