FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54811/00 by Marta VESEL Á and Tobiáš LOYKA against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 23 November 2004 as a Chamber composed of:

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 Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 12 October 1999 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mrs Marta Vesel á and Mr Tobiáš Loyka , are Slovakian nationals, who were born in 1939 and 1947 respectively and live in Bratislava .

A. The circumstances of the case

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

The applicants are the owners of a commercial company (“the company”) . The company had originally t he legal form of a limited liability company and had its registered seat in Bratislava . It was then transformed into a joint stock company and its seat was moved to B anská Bystrica and the n back to Bratislava . T he first applicant is also the chairperson of the company ' s board of directors and the second applicant is the chairperson of its supervisory board .

In 1996 the company bought a peat plant which was composed of a peat extraction site and operational buildings and facilities.

The applicants s ubsequently learned that in 1991 a group of original owners and legal successors of original owners of the land on which the extraction site was located had raised a claim with the Dolný Kubín Land Office ( Okresný úrad , odbor pozemkový , poľnohospodárstva a lesného hospodárstva ) for restitution of their ownership title to it. They maintained that the land in issue had never actually been used for the purpose for which it had been expropriated in 1956 , this being a legal ground for restitution recognised under Section 6 (1) (m) of the Land Ownership Act of 1991.

On 23 July 1996 the Land Office granted the restitution claim . It o bserved that the reason for the extraction site ' s expropriation had been defined in the expropriation decision of 1956 as “the construction of a peat extraction plant”. The Land Office found that the specific parcels of land which were in issue had merely been used as a peat reservoir while the plant as such had been constructed on other parcels. The Land Office concluded that the actual use of the litigious land was different from the use foreseen in the expropriation decision . The restit ut ion claim was therefore well founded under Section 6 (1) (m) of the Land Ownership Act. The company challenged this decision by an administrative ‑ law appeal.

On 20 September 1996 t he case ‑ file was transmitted to the Banská Bystrica Regional Court ( Krajský súd ) for a decision on the appeal.

On 29 November 1996 t he Banská Bystrica Regional Court quashed the decision of 23 July 1996 and remitted the case to the Land Office for reconsideration . The Regional Court found that the Land Office had failed to establish the relevant facts adequately and that there had been se rious procedural flaws . The Regional Court finally expressed the view that the peat reservoir was an integral part of the peat plant. By constructing the complex of the plant the purpose of the expropriation had been met in respect of the whole real property concerned.

On 27 May 1997 the Tvrdošín Land Office agai n granted the restitution claim arriving at similar conclusions as in the decision of 23 July 1996 . The company challenged this decision by a n administrative ‑ law appeal arguing that the District Office had failed to follow the binding legal view of the case expressed by the Banská Bystrica Regional Court in its judgment of 29 November 1996 .

On 29 May 1998 the Žilina Regional Court upheld the decision of the Land Office of 27 May 1997 . It found that the purpose of the expropriation, as defined in the expropriation decision, was “to construct ” a peat plant on it . The land was however used for “ extraction ” of peat and no plant as such had been constructed on it. The Regional Court conceded t h at the purpose of the expropriation had obviously been defined inaccurately. This inaccuracy however could not be relied on to disadvantage the restitution claimants . Th e decision was not subject to an ordinary appeal and it became final and binding on 8 July 1998 .

On 24 November 1998 , on the company ' s petition, the Prosecutor General lodged an extraordinary appeal on points of law ( mimoriadne dovolanie ) against the judgment of 29 May 1998 with the Supreme Court ( Najvyšší súd ). He challenged the conclusions of the Žilina Regional Court for being legally incorrect and objected that they were based o n findings of fact which had no s upported in the evidence taken . At the same time the Prosecutor General requested that the Supreme Court stay the enforceability of the contested judgment pending a decision on the appeal.

On 26 May 1999 the Supreme Court petitioned for proceedings before the Constitutional Court with a view to repealing as unconstitutional the provisions of the Code of the Civil Procedure vesting in the Prosecutor General the power to challenge final decisions of ordinary courts by an extraordinary appeal on points of law. On the same day the Supreme Court stayed the proceedings concerning the Prosecutor General ' s appeal of 24 November 1998 pending the outcome of the proceedings before the Constitutional Court .

On 19 July 2000 the Constitutional Court dismissed the Supreme Court ' s petition.

On 13 December 2000 the Supreme Court quashed the judgment of 29 May 1998 and remitted the case to the Žilina Regional Court for re ‑ examination. It f ound that the relevant facts had b een established inadequately in that , inter alia , no consideration had been g i ven to the company ' s argument that drain channels and a railway had been constructed on the land under dispute . On 16 May 2001 the Supreme Court corrected some textual errors in its judgment .

On 26 June 2002 the Supreme Court excluded the entire bench of the Žilina Regional Court from dealing with the case and ruled that it was to be determined by the Košice Regional Cour t . It did so at the request of the President of the Žilina Regional Court ' s Chamber joined by all judges of th at c ourt on the ground that they felt bias ed against the applicants who had challenged the ir impartiality several times in submissions of an offensive nature . T he proceedings are still pending before the Košice Regional Court .

In September 2002 the company turned to the Constitutional Court with a complaint under Article 127 of the Constitution . I t objected inter alia that the Supreme Court had remained inactive in the case in the period from 24 November 1998 to 13 December 2000 in violation of Article 6 § 1 of the Convention.

On 11 December 2002 the Constitutional Court declared the complaint inadmissible. As regards the objection in respect of the proceedings before the Supreme Court, t he Con stitutional Court noted that the se proceedings had ended with the decision of 13 December 2000 prior to the introduction of the constitutional complaint . Their examination therefore could not bring about their acceleration. In line with its established case ‑ law the Constitutional Court held that , therefore, the relevant part of the complaint was manifestly ill-founded.

B. Relevant domestic law and practice

1. The Constitution

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

Prior to 1 January 2002 there was no “effective remedy” within the Convention meaning in Slovakia as regards this right (see, mutatis mutandis , Bánošová v. Slovakia ( dec .), no. 38798/97, 27 April 2000 ).

As from 1 January 2002 the Constitution has been amended in that, inter alia , natural 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, 6856 3/01, 60226/00, 22 October 2002).

2 . The Constitutional Court Act

The implementation of the above constitutional provisions is set out in more detail in Sections 49 to 56 of Constitutional Court Act No. 38/1993, as amended.

Section 53 (3) provides that a constitutional complaint can be filed within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period commences when the complainant could have become aware of them.

3 . The Constitutional Court ' s practice

It has been the Constitutional Court ' s practice to examine alleged violations of the right to a hearing without undue delay only where the relevant remedy was filed with it at a time when the alleged violation occurred or was still continuing (see for example the decision of 20 May 1999 under the file no. I. ÚS 34/99).

In the proceedings file no. IV. ÚS 176/03 the plaintiff complained to the Constitutional Court , inter alia , about the length of proceedings concerning her maintenance. The action was originally filed with the Košice II District Court in 1998. The question arose whether the first instance and the second instance court judges were impartial. On 24 May 1999 the Supreme Court decided that the question of impartiality of the judges at the first instance would be determined by the Žilina Regional Court . The latter decided on 28 January 2000 that the action would be examined at first instance by the Michalovce District Court which determined it on 11 December 2002 . On 10 September 2003 the Žilina Regional Court upheld the first instance judgment. In her complaint to the Constitutional Court of 28 February 2003 the plaintiff alleged that the ordinary courts had violated her right to a hearing without undue delay. The Constitutional Court declared this complaint manifestly ill-founded on 9 October 2003 . The decision state d that , insofar as the complaint related to the part of the proceedings leading to the Supreme Court ' s decision of 24 May 1999, it had been filed out of time since , at the moment of the introduction of the constitutional complaint , the relevant part of the proceedings w as no longer pending. For similar reason the Constitutional Court rejected the complaint in respect of the subsequent proceedings before the Michalovce District Court which had ended on 11 December 2002 . As to the appellate proceedings before the Žilina Regional Court , the Constitutional Court noted that they had lasted less than five months and found that this period was not excessive.

4. The Code of the Civil Procedure

Part 5 of the Code governs the administrative judiciary. Under Article 244 (1) administrative tribunals review the lawfulness of decisions taken by public authorities on the basis of administrative ‑ law actions under Chapter 2 of that Part and administrative law ‑ appeals under Chapter 3 of that Part.

In accordance with Article 250l the provisions of Chapter 3 of Part 5 concerning administrative ‑ law appeals apply only in cases where the law, such as for example Section 9 ( 4 ) of the Land Ownership Act (see below), specifically bestow s on courts the power to determine legal remedies ( opravné prostriedky ) against administrative decisions which have not yet become final and binding.

Pursuant to A rticle s 250q and 250 r the administrative tribunal reviewing an administrative authority ' s decision on the basis of an administrative ‑ law appeal has the power to uphold or quash the reviewed decision . It may take such evidence as is necessary for the review . When the administrative tribunal decides to quash the reviewed decision, the case is remitted b ack to the administrative authority which is bound by the legal opinion expressed by the tribunal .

Under Article 250s , as amended by Act 424/2002 Coll., any decision of an administrative tribunal upholding a decision of an administrative authority on the basis of an administrative ‑ law appeal may be challenged by an appeal .

5 . The Land Ownership Ac t

T he Land Ownership Act No. 229/1991 Coll., as amended, provides for the possibility o f the restoration of a gricultural land and certain other agricultural assets (immovable as well as movable) which were confiscated between 25 February 1948 and 1 January 1990 .

Purs uant to Section 6 (1) (m) immovable property is to be restored if it was expropriated in the above period for compensation and if it still exists but has never served the purpose for which it was expropriat ed .

Under Section 9 § 1 of this Act, a claimant shall lodge a restitution claim with the competent Land Office and, at the same time, invite the person holding the property in issue to restore them to him/her. If the legal or natural person holding the property does not contest the restitution claim, the holder is required to conclude, within sixty days, a restitution agreement with the claimant. Such an agreement must be approved by the Land Office.

If no such agreement has been concluded, the claim is to be determined by t he Land Office (Section 9 § 4) the decision of which may be review e d by an administrative tribunal on the basis of an administrative ‑ law appeal (Section 9 § 7) .

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention that the proceedings concerning the restitution claims as a whole lacked the guarantees of a fair hearing . In particular they complain that the right of access to a court was n ot respected in that under the applicable procedural rules the administrative judiciary does not have a full jurisdiction to review the decision of the Land Office . They maintain that, under the applicable rules , an administrative tribunal has only the power to review the “legality” of the decision of the Land Office and that it cannot review fully its factual assessment of the case .

2. Relying on Article 6 § 1 of the Convention , the applicants also complain that the length of the proceedings concerning the restitution claims has been excessive. They maintain that the period to be considered commenced on 20 September 1996 when the Land Office ' s case ‑ file was transmitted to the Banská Bystrica Regional Court . They point out that the Supreme Court failed to take any decision in respect of the Prosecutor General ' s request that the enforceability of the Žilina Regional Court ' s judgment of 29 May 1998 be stayed .

3. Under Article 13 of the Convention in conjunction with Article 6 § 1 of the Convention the applicants f inally complain that there was no effective remedy in respect of the Žilina Regional Court ' s judgment of 29 May 1998 and in respect of the length of the proceedings.

THE LAW

1. The applicants complain that the proceedings in the present case fell short of the guarantees of a fair hearing within a reasonable time in violation of Article 6 § 1 of the Convention which, insofar as relevant, provides:

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

a) The Court considers that it is not called upon to decide at this stage whether the applicants themselves can be considered victims within the meaning of Article 34 of the Convention of a violation of the right to a fair hearing u nder Article 6 § 1 of the Convention in the contested proceedings which formally concern their company as the relevant part of the application is in any event inadmissible for the following reason.

The Court recalls that the question whether proceedings before national authorities satisfy the requirements of a fair hearing can in principle only be determined by examining the proceedings as a whole, that is to say only once they have been concluded (see Kuráková v. Slovakia ( dec .), no. 37895/97, 1 February 2001 ).

In the present case the restitution claims were granted on 27 May 1997 by the Tvrdošín Land Office . The administrative ‑ law appeal against this decision was dismissed , on 29 May 1998 , by the Žilina Regional Court . The Regional Court ' s d ismissal was however later quashed by the Supreme Court on 13 December 2000 . T he administrative ‑ law appeal against the decision of 27 May 1997 thus fell to be determined anew at the Regional Court ' s level where it is still pending.

The Court also notes that, when deciding again on this appeal , under Article 250q of the Code of the Civil Procedure , the Regional Court has the power to take such evidence as is necessary for the review and that, under Article 250s of that Code, if i t upholds the decision of the Land O ffice, its judgment may further be challenged by an appeal .

In these circumstances the Court considers that the complaint of unfairness of these proceedings is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

b) As to the complaint of the length of the proceedings, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicants further complain under Article 13 of the Convention taken together with Article 6 § 1 of the Convention of a lack of an effective remedy in respect of the Žilina Regional Court ' s judgment of 29 May 1998 and in respect of the length of the proceedings. Article 13 of the Convention provides that:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

a) According to the Court ' s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

The Court has noted above that the Regional Court ' s judgment of 29 May 1998 was quashed by the Supreme Court on 13 December 2000 and that the proceedings on the company ' s administrative ‑ law appeal against the decision of the Tvrdošín Land Office of 27 May 1997 are still pending.

T he Court finds that, in these circumstances and even assuming that the applicants have had the status of a “ victim ” in the Convention sense in this context, they cannot be said to have a n “arguable claim” for the purposes of Article 13 of the Convention of a violation of their rights protected under Article 6 § 1 of the Convention in connection with the contested judgment.

It follows that the relevant part of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

b) As to the complaint under Article 13 of the Convention of the lack of an effective remedy in respect of the complaint under Article 6 § 1 of the Convention of the length of the proceedings in the present case, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants ' complaint under Article 6 § 1 of the Convention of the length of the proceedings and their complaint under Article 13 of the Convention of the lack of an effective remedy in that respect ;

Declares the remainder of the application inadmissible.

Michael O ' Boyle Nicolas BRATZA Registrar President