FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53363/99 by Richard VANEK against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 31 May 2005 as a Chamber composed of: [Note1]

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr M. Pellonpää , Mr R. Maruste , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mr J. Šikuta , judges , and Mrs F. Elens-Passos , Deputy Section Registrar , [Note2]

Having regard [Note3] to the above application lodged on 3 November 1999 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Richard Vanek , is a Slovakian national who was born in 1939 and lives in Bratislava . He was represented before the Court by Mr J. Klimko , a lawyer practising in Bratislava . The respondent Government were represented by Mr P. Kres ák , their Agen t , succeeded by Ms A. Pol áčková .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows. [Note4]

The inhabitants of the house in which the applicant lives asked the owner of the house to sell the respective flats to them pursuant to the Flat and Other Premises Ownership Act of 1993 (see “The relevant domestic law” below). The administrator of the house, the Bratislava - Staré mesto municipality, proposed to sell the flats to the inhabitants. However, it excluded the loft from the sales contracts as it envisaged selling it to a third person who planned to buil d new flats there. Subsequently the following relevant facts occurred and decisions were taken.

1. First proceedings concerning an interim measure

On 26 August 1998 the inhabitants of the house, including the applicant, requested the Bratislava I District Court to issue an interim measure preventing the municipality from disposing of the loft and the contractual partner of the municipality from constructing flats there.

On 30 September 1998 the Bratislava I District Court granted the request. It further ordered the plaintiffs to file, within thirty days, an action with a view to having determined the validity of the contract concluded between the municipality and the second defendant.

On 31 March 1999 the Bratislava Regional Court upheld the District Court ’ s decision.

2. Claim for enforcement of the preliminary measure of 30 September 1998

On 16 June 1999 the applicant complained to the District Court that construction works were being carried out on the top of the house in which he lived despite the court ’ s injunction. He requested that the District Court ’ s decision on the interim measure be enforced.

Between October 1999 and March 2000 the District Court took several procedural steps .

On 2 October 2001 the applicant informed the Bratislava I District Court that he maintained his request for enforcement of the decision. He complained that the construction works were still being carried out despite the judicial injunctions.

The proceedings are pending.

3. Second proceedings concerning an interim measure

On 16 June 1999 the applicant and the other inhabitants of the house requested the Bratislava I District Court to again issue an interim measure preventing the municipality and its two other contractual partners from making use of the loft. The plaintiffs submitted that the two contractual partners of the municipality had already started construction works at the roof level of the house.

On 18 April 2001 the Bratislava I District Court granted the request. It further ordered the plaintiffs to file, within thirty days, a claim concerning the validity of the relevant contract concluded between the defendants.

4. Proceedings concerning the validity of the building contract

On 4 November 1998 the applicant and nine other inhabitants challenged the validity of the construction contract concluded between the municipality Bratislava - Star é mesto and the company RAFT, s.r.o . concerning the construction of flats at the roof level of the house in which the plaintiffs lived.

On 11 July 2001 the President of the Bratislava I District Court informed the applicant that the judge dealing with the case had a heavy workload and that she had therefore not yet started examining the case.

On 18 October 2002 the Bratislava I District Court declared the contract void. On 20 February 2003 the applicant informed the Court that the judgment had not yet been served on him.

The proceedings appear to be still pending.

5. Proceedings concerning the sale of apartments to the applicant and the other inhabitants of the house

On 23 July 1999 the applicant and the other inhabitants of the house claimed that the Bratislava I District Court should deliver a judgment replacing the declaration of intent of the Bratislava - Star é mesto municipality and permitting the sale of the flats , including the loft , to them under the Flats and Other Premises Ownership Act of 1993. The plaintiffs claimed that the defendant municipality had failed to comply with its statutory obligation to do so.

On 4 November 1999 the plaintiffs submitted further information at the court ’ s request.

On 28 February 2000 the District Court discontinued the proceedings on the ground that the action was incomplete.

The plaintiffs appealed and the Bratislava Regional Court , on 25 May 2000 , quashed the first instance decision.

The appellate court ’ s decision was served in June 2000. On 1 February 2001 the District Court requested the defendant to submit comments on the action.

On 10 May 2001 the applicant submitted further information at the District Court ’ s request.

On 26 November 2002 the Bratislava I District Court dismissed the action. It noted that several plaintiffs had already concluded purchase contracts in respect of their apartments and that in the draft contracts attached to their action the plaintiffs proposed to buy the apartments from a person other than the defendant.

On 5 February 2003 the applicant and the other plaintiffs appealed.

On 9 September 2003 the Bratislava Regional Court upheld the first instance judgment concluding that the plaintiffs had failed to comply with the relevant statutory requirements.

On 7 November 2003 the applicant and two other tenants filed a new action to the Bratislava I District Court. The plaintiffs sought the delivery of a judgment replacing the declaration of intent of the owner of the house to sell the flats to them. The proceedings are pending.

6. Proceedings before the Constitutional Court

On 5 April 2001 the Constitutional Court declared inadmissible, inter alia , the applicant ’ s complaint that his property rights ensuing from the Flats and Other Premises Ownership Act of 1993 had been violated. The decision stated that the relevant issues were being determined in proceedings before the ordinary courts. The applicant ’ s petition was therefore premature.

On 31 August 2001 the Constitutional Court found that the applicant ’ s constitutional right to a hearing without undue delay had been violated by the Bratislava I District Court in the above proceedings concerning the validity of the construction contract, in the proceedings concerning the sale of the apartments and also in the proceedings concerning the interim measure brought on 16 June 1999 .

On 10 January 2002 the applicant filed a complaint under Article 127 of the Constitution, as in force since 1 January 2002 . He complained about the length of the above enforcement proceedings and requested the Constitutional Court to order the Bratislava I District Court to comply with its finding of 31 August 2001 .

On 31 January 2002 the Constitutional Court declared admissible the applicant ’ s complaint about the length of the enforcement proceedings.

On 4 July 2002 the Constitutional Court found a violation of the applicant ’ s constitutional right to a hearing without undue delay in these proceedings. It ordered the Bratislava I District Court to proceed with the case without further delays and granted the applicant just satisfaction of 10,000 Slovakian korunas (SKK).

B. Relevant domestic law and practi ce

1. Constitutional provisions and the Constitutional Court ’ s practice

Article 48(2) of the Constitution provides, inter alia , that every person has the right to have his or her case tried without unjustified delay.

Pursuant to Article 130(3) of the Constitution, as in force until 30 June 2001 , the Constitutional Court could commence proceedings upon the petition (“ podnet ”) presented by any individual or a corporation claiming that their rights had been violated.

According to its case-law under the former Article 130(3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner ’ s rights under Article 48(2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court ’ s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.

As from 1 January 2002 , the Constitution has been amended in that, inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision the Constitutional Court has the power, in the event that it finds a violation of Article 48(2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia ( dec .), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).

2. The Flats and Other Premises Ownership Act of 1993

Act No. 182/1993 on the ownership of flats and other premises ( Zákon o vlastníctve bytov a nebytových priestorov - “The Flats and Other Premises Ownership Act”) entered into force on 1 September 1993 . It provides, inter alia , for the transfer of ownership of flats to individuals by means of a contract.

Under Section 2(4), roof spaces and lofts form a common part of a house for the purposes of the Act.

Section 13(1) provides that the ownership of a flat is inseparably linked to joint ownership of the common parts of the house and its fixtures, as well as of the plot on which the house is built.

Section 19(1) provides that, unless otherwise agreed, the owners of the flat shall jointly own the common parts of the house and its fixtures. The right of joint ownership in respect of such premises shall be transferred together with the transfer of the ownership right in respect of a flat situated in the house.

Section 29a, enacted by an amendment which entered into force on 1 August 1995 , imposes on municipalities the obligation to transfer within two years the ownership of flats to tenants so wishing, in houses in which such a transfer has been requested by at least 50 per cent of the tenants.

3. The Liability Acts of 1969 and of 2003 (Act s no. 58/1969 and no. 514/2003 Coll.)

  Section 18(1) of the State Liability Act of 1969 (Act no. 58/1969 Coll.) rendered the State liable for damage caused in the context of carrying out functions vested in public authorities which result ed from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation c ould be granted when the plaintiff show ed that he or she suffered damage as a result of an erroneous action of a public authority, quantifie d its amount, and show ed that there wa s a causal link between the damage and the erroneous action in question.

Act no. 514/2003 on Liability for Damage Caused in the Context of Exercise of Public Authority ( Zákon o zodpovednosti za škodu spôsobenú pri výkone verejnej moci a zmene niektorých zákonov ) was adopted on 28 October 2003 . It became operative on 1 July 2004 and it has replaced the State Liability Act of 1969. Section 17 of the Act provides for compensation for pecuniary damage including lost profit and, where appropriate, also for compensation for damage of a non-pecuniary nature.

COMPLAINTS

1. The applicant complain ed under Article 6 § 1 of the Convention that his right to a fair hearing within a reasonable time ha d not been respected in the above proceedings.

2 . Under Article 1 of Protocol No. 1 the applicant complain ed that the construction works ha d prevented him from peacefully enjoying the property situated in his flat and that he was prevented from purchasing the flat, including his share of the common parts of the house, to which he was entitled under the Flats and Other Premises Ownership Act of 1993.

3. The applicant alleged a violation of Article 8 of the Convention in that the competent authorities had permitted the construction to be carried out despite the above judicial orders.

4 . Finally, the applicant complain ed under Article 17 of the Convention that the public officials involved in the case had abuse d the law.

THE LAW [Note5]

1. The applicant complained that his right to a fair hearing within a reasonable time had not been respected in the proceedings to which he was a party. He relied on Article 6 § 1 of the Convention which in its relevant part provides:

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

a) As regards the applicant ’ s complaint about the length of the proceedings concerning the validity of the building contract and of the proceedings concerning the sale of the flats, the Government admitted, with reference to the Constitutional Court ’ s finding of 31 August 2001 , that that part of the application was not manifestly ill-founded.

The Court notes that the proceedings concerning the validity of the building contract were brought on 4 November 1998 . T he first instance decision on the case was given on 18 October 2002 , and the proceedings are apparently still pending.

The original proceedings concerning the sale of the flat were brought on 23 July 1999 and they ended on 9 September 2003 .

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of this part of the application is required.

b ) As the documents before the Court indicate that the proceedings concerning the validity of the building contract are still pending , the applicant ’ s complaint about the unfairness of these proceedings is premature.

As to the complaint s about the unfairness of the proceedings concerning the first action for sale of an apartment filed in 1999 and about the length of the proceedings concerning the applicant ’ s second action on the same issue filed in 2003 , it does not appear from the documents submitted that the applicant sought redress before the Constitutional Court pursuant to Article 127 of the Constitution, as in force since 1 January 2002 .

It follows that th e s e complaint s must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

c) To the extent that the applicant complained about unfairness and length of the proceedings relating to his requests for injunctions and their enforcement , the Court recalls that such proceedings fall outside the scope of Article 6 § 1 of the Convention (see Apis a.s . v. Slovakia ( dec .), no. 39754/98, 1 3 January 2000 ).

It follows that these complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The applicant complained that the construction works prevented him from peacefully enjoying the property situated in his flat and that he was prevented from purchasing the flat, including his share of the common parts of the house, to which he was entitled under the Flats and Other Premises Ownership Act of 1993. He alleged a violation of Article 1 of Protocol No. 1 which provides:

“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.”

T he Government contended that it was open to the applicant to seek redress, as regards the courts ’ failure to enforce the injunction prohibiting the construction works, by means of an action for damages under the State Liability Act of 1969 as well as before the Constitutional Court under Article 127 of the Constitution, as in force since 1 January 2002 .

The applicant disagreed and contended that his property rights had been violated as the relevant law entitled him to acquire the flat together with an adequate share of the common premises and parts of the house.

As regards the complaint that the applicant has been unable to purch ase the flat in which he lives, the Court notes that the courts were prevented from determining his first action of 23 July 1999 as he had failed to correctly specify the owner of the flat. Subsequently the applicant filed a second action, in 2003, which the courts have not yet determined. In parallel, proceedings are pending in which the validity of the contract permitting third persons to construct flats at roof level of the house is to be determined. This complaint is therefore premature.

The Court has noted that the persons concerned disregarded the injunction issued by a court and that the applicant has unsuccessfully claimed that that decision be enforced. Since the merits of the case are still to be determined by domestic courts the Court accepts, however, the Government ’ s argument that in this respect the applicant can seek redress by means of a claim for compensation for any pecuniary damage which he has suffered . Ultimately, after a final decision has been given, it will also be open to the applicant to seek redress before the Constitutional Court .

Similarly, it has been open to the applicant to seek protection of his ownership rights and claim damages as regards the alleged impediments to the use of his existing property.

It follows that this part of the application must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The applicant complained that the competent authorities had permitted the construction of flats to be carried out despite the above judicial injunctions . He relied on Article 8 of the Convention which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government argued that the applicant had not exhausted domestic remedies as he had not sought redress by means of an action for protection of his personal rights under Article 11 et seq. of the Code of Civil Procedure as well as by means of a complaint under Article 127 of the Constitution, as in force since 1 January 2002 .

The applicant disagreed and argued that, in substance, he sought to purchase the apartment in which he lives , together with the appropriate share of common premises, and that he was prevented from doing so .

T he Court notes that the applicant had not submitted any prima facie evidence indicating a violation of his rights under Article 8 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The Court has also examined the applicant ’ s complaint under Article 17 of the Convention but finds, to the extent that the complaint has been substantiated and falls within its competence, that it discloses no appearance of a violation of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaint under Article 6 § 1 of the Convention about [Note6] the length of the proceedings concerning the validity of a building contract and of the proceedings concerning the sale of an apartment brought on 23 July 1999 ;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President [Note7]

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ).

[Note2] To be checked. If changes take place, either type in or remove names as necessary or launch template DE0.9 and insert the correct list.

[Note3] Delete paragraphs not needed .

[Note4] Where the parties’ description of the facts differ, their respective versions of the facts should be set out separately.

[Note5] Indicate (1) complaint briefly, without repeating wording from Complaints section; (2) Article of the Convention; (3) succinct summary of Government’s submissions; (4) succinct summary of applicant’s submissions; (5) Court’s case-law; and (6) application of case-law to facts of particular case or considerations for specific facts of case.

The summary of the parties' observations (points 3 and 4) should be as short as possible, in particular in cases which follow established case-law. The parties' arguments should be integrated into the Court's reasoning.

[Note6] Summarise the complaints succinctly without necessarily citing the invoked Convention Articles.

[Note7] Check names. Adapt tabs.