FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52443/99 by Ľ .R. and Ľ.R Senior against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 26 October 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Mrs E. Fura-Sandström , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 10 September 1999 ,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mrs Ľ .R. , is a Slovakian national who was born in 1948. She is the daughter of the second applicant, Mrs Ľ.R. Senior, who was a Slovakian national born in 1926 and who died on 26 February 2004 . The first applicant expressed the wish to continue the application also in her mother ' s stead.

A. The circumstances of the case

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

On 30 August 1991 the first applicant filed an action with the Bratislava III District Court. She claimed that the defendants should be restrained from trespass ing on her plot of land and from damaging her property and ordered to compensate her for damage.

On 2 March 1992 the first applicant extended her action in that she claimed that a purchase contract which she had concluded with the defendants in respect of a plot of land in 1982 should be declared void.

On 7 June 1994 the Bratislava III District Court dismissed the first applicant ' s request for admission of the second applicant as a third party to the proceedings. At the hearing the parties stated that they waived their right to appeal against this decision.

Subsequently the following facts occurred and decisions were taken in th e context of the above claims .

1. Proceedings on the first applicant ' s claim relating to the validity of a purchase contract

On 27 October 1994 the Bratislava III District Court dismissed the first applicant ' s claim of 2 March 1992 concerning the validity of the purchase contract concluded in 1982 . It further decided to deal in a separate set of proceedings with the first applicant ' s claim of 30 August 1991 .

After having heard the second applicant and referring to further evidence, the court did not accept the first applicant ' s argument that the purchase price had not been determined correctly in the contract of 1982 and that she had concluded it under pressure at a time when her state of health had deteriorated. The judgment stated , in particular, that the property had been valued by an expert at the first applicant ' s request and there was nothing to show that the valuation had been unlawful. The court further found unsubstantiated the first applicant ' s allegation that her parents had exercised pressure on her. As to the plaintiff ' s allegation that her health had affected her capacity to act at the relevant time, the court ordered an expert to submit an opinion. The expert concluded that the first applicant had not suffered from any disorder affecting her capacity to act in law. The court also addressed the first applicant ' s argument that the contract was invalid as the price indicated in it was lower than the sum which had actually been paid. With reference to the defendants ' argument the court found that the first applicant ' s objection in this respect was time-barred.

On 17 November 1994 the first applicant appealed . She alleged that the first instance court had failed to establish the facts correctly and that it had committed errors of law. She submitted further reasons for her appeal on 3 February 1995 . She claimed, inter alia , that the expert ' s conclusion on her state of health at the relevant time should be reviewed by two other experts. The first applicant also proposed the taking of e vidence to establish that she had not been present when the property in question had been inventoried with a view to its being s old to the defendants.

On 20 June 1995 the Bratislava City Court upheld the District Court ' s judgment of 27 October 1994 . At the hearing the first applicant was not allowed to present in full an oral statement which she had prepared beforehand. The first applicant also unsuccessfully requested that further evidence be taken by allowing her to put a question to the defendants.

In its judgment t he appellate court held that the evidence taken at first instance was sufficient for determining the action. The appellate court found, with reference to statements of the parties, that the arguments raised by the first applicant had been correctly addressed by the first instance court. T aking of further evidence as requested by the first applicant would be unrealistic and superfluous.

The appellate court ' s judgment was served on the first applicant on 14 November 1995 . On 6 December 1995 she filed an appeal on points of law. She argued that the appellate court had refused to take further evidence and that she had been restricted in submitting her case to it orally .

On 2 October 1996 the Bratislava III District Court discontinued the proceedings on the ground that the first applicant had failed to pay the cassation fee. The first applicant submits that that decision was taken despite the fact that, on 22 April 1996 , she had filed a request for exemption from the obligation to pay the fee. On 11 October 1996 the first applicant withdrew that request and she paid the fee on 14 October 1996 . On 7 April 1997 the District Court quashed its decision of 2 October 1996 .

On 20 August 1998 the second applicant filed an appeal on points of law against the Bratislava City Court ' s judgment of 20 June 1995 . She explained that she did so as a third party to the proceedings. The second applicant argued that the lower courts ' conclusions were arbitrary and that those courts had not considered her to be a third party to the proceedings before them.

On 23 November 1998 the first applicant submitted to the court of cassation relevant documents in support of her action as she had learned that they had disappeared from the case-file. She also complain ed that the defendants ' observations on her appeal on points of law had not been sent to her.

On 24 March 1999 the Supreme Court rejected the appeals on points of law of both applicants. The court of cassation referred to the record of the hearing before the appellate court and found that the first applicant had been given a sufficient opportunity to p resent her case. In those circumstances, an appeal on points of law was not admissible and the Supreme Court did not, therefore , review the conclusion reached by the lower courts.

As to the appeal on points of law filed by the second applicant, the Supreme Court held, with reference to the Bratislava III District Court ' s decision of 7 June 1994, that she lacked standing to file it as she was not a third party to the proceedings under consideration .

2 . Proceedings on the first applicant ' s claim of 30 August 1991 relating to interference with her property rights and damages

As indicated above, the Bratislava III District Court decided , on 27 October 1994 , to deal separately with the first applicant ' s claim of 30 August 1991 as it was necessary to take further evidence .

On 27 May 1997 the proceedings relating to this claim were registered under number 7 C 87/97. On 14 July 1998 the same case was again registered under number 12 C 211/98. As both cases concerned the same subject-matter and parties , the proceedings registered under the former number were formally discontinued on 1 August 2001 . That decision became final on 2 October 2001 .

On 19 August 1998 the District Court requested the first applicant to eliminate formal shortcomings in her action. The first applicant replied on 28 August 1998 . She submitted that her mother was to be considered as a third party to the proceedings.

On 16 February 2000 the District Court again requested the first applicant to bring her submissions in to line with the formal requirements. On 14 March 2000 the first applicant replied that she ha d complied with the relevant requirements. She further requested that the proceedings be stayed pending the outcome of proceedings on her application filed with the Court.

On 5 June 2000 the Bratislava III District Court found no relevant reason for staying the proceedings. On 30 June 2000 the first applicant appealed.

On 13 October 2000 the Bratislava III District Court informed the first applicant that her original action was still incomplete and invited her to eliminate formal shortcomings in it.

On 24 November 2000 the District Court discontinued the proceedings No. 12 C 211/98 as it found that the claim did not conform to the formal requirements. On 29 December 2000 the first applicant appealed against this decision.

On 31 January 2001 the Bratislava Regional Court upheld the first instance decision of 5 June 2000 by which the first applicant ' s request for the proceedings to be stayed had been dismissed.

On 26 February 2002 the Bratislava Regional Court upheld the District Court ' s decision to discontinue the proce edings delivered on 24 November 2000 . The appellate court found that the first instance court had duly invited the first applicant to bring her action in to line with the formal requirements and that the first applicant had not do ne so either b efore the first instance court or in the course of the appellate proceedings. In the same decision the Regional Court dismissed the first applicant ' s request for exclusion of the first instance judge involved in the case.

On 30 April 2002 the applicant lodged an appeal on points of law against the Bratislava Regional Court ' s decision. She argued that the proceedings in question should have been discontinued as a different set of proceedings concerning the same claim and registered under No. 7 C 87/97 had been pending at the relevant time .

On 28 May 2003 the Supreme Court rejected the appeal on points of law. The decision stated that proceedings No. 7 C 8 7 /97 had been discontinued on 1 August 2001 . There had therefore been no obstacle of litis pendens . The Supreme Court found no arbitrariness in the lower courts ' conclusion according to which the first applicant had failed to comply with the statutory requirements. Finally, the Supreme Court dismissed as unsubstantiated the first applicant ' s allegation that the judges involved in the case had been biased.

3. Proceedings before the Constitutional Court

On 3 April 2003 the first applicant lodged a complaint with the Constitutional Court pursuant to Article 127 of the Constitution, as in force sin c e 1 January 2002 . She alleged a violation of her right to a hearing without undue delay in the proceedings co ncerning her claim of 30 August 1991 and registered under No. 7 C 87/97 . She complained, with reference to the principle ne bis in idem , that her claim of 30 August 1991 was dealt with in t wo separate sets of proceedings , a nd that such procedure was confused . The first applicant further alleged a violation of Articles 10, 13, 14 of the Convention and of Article 1 of Protocol No. 1 in the proceedings concerning the validity of the purchase contract of 1982 , and that the length of those proceedings had been excessive . The first applicant requested that the second applicant should be admitted as third party to the proceedings before the Constitutional Court .

On 3 December 2003 the Constitutional Court dismissed the first applicant ' s complaint. The decision stated that the first applicant had failed, despite a prior request, to submit in accordance with the formal requirements her constitutional complaint relating to the fact that the Bratislava III District Court had dealt with her claim of 30 August 1991 in two separate sets of proceedings at the same time. Since the proceedings concerning the validity of the purchase contract had ended on 24 M arch 1999 , her complaint in their respect was submitted after the expiry of the statutory two month s ' time-limit. As to the complaint about the length of the proceedings concerning the purchase contract and of proceedings No. 7 C 87/9 7 , the Constitutional Court found that final decisions in those proceedings had b e en given in 1995 and 2001 respectively. However, in accordance with its practice, it could only entertain such complaints where the proceedings complained of were pending at the moment when a complaint under Article 127 of the Constitution was filed. Finally, the Constitutional Court referred to the Supreme Court ' s finding that the second applicant had lacked standing to act as a third party in the proceedings before the ordinary courts. It therefore found no reason for admitting the second applicant as third party in the proceedings before it.

4. Proceedings concerning the first applicant ' s claim for a plot of land

On 26 August 2003 the first applicant requested the Bratislava III District Court to issue an interim measure preventing the defendants from building a house on a plot of land adjacent to her land and from disposing of that property.

On 10 December 2003 the Bratislava III District Court dismissed the applicant ' s request for an interim measure. It further invited the first applicant to submit an action concerning the merits of the case. On 19 April 2004 the first applicant lodged an action claiming that the land in question should be restored to her and that the defendants should be ordered to remove the house which they had built on it.

On 8 June 2004 the first applicant filed a request for enforcement of the above decision of 10 December 2003 . She argued that it prohibited the defendants from build ing a house. On 12 July 2004 the first applicant paid the court fee. On 3 August 2004 the Bratislava III District Court dismissed the request noting that in the above decision of 10 December 2003 the request for an injunction had been dismissed. The applicant appealed and the proceedings are pending.

On 28 July 2004 the District Court requested the first applicant to formulate her action in accordance with the formal requirements. On 21 September 2004 the first applicant replied. She requested that the proceedings be stayed pending the outcome of the proceedings before the Court.

B. Relevant domestic law and 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 Constitu tion, 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 had been 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 case 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 a person whose constitutional right has 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).

It has been the Constitutional Court ' s practice to entertain complaints about the excessive length of proceedings only where the proceedings complained of are pending at the moment when such complaints are lodged with it.

COMPLAINTS

1. The first applicant complain ed t hat the proceedings concerning her claims had been unfair , that the courts had decided arbitrarily and in disregard of the relevant facts. As regards the proceedings concerning the validity of the purchase contract in particular, she allege d that the courts had disregarded her arguments and had r efused to take evidence as suggested by her. She further complain ed that she had not been allowed to terminate her oral submissions at the hearing held before the Bratislava City Court, and that the judge of that court had refused to take additional evidence by allowing her to put a question to the defendants , and that the City C ourt had not hear d the second applicant. The first applicant allege d that the courts dealing with her claims had been neither in dependent nor impartial. The f irst applicant further complain ed about the length of the proceedings concerning her claims.

The second applicant complained that the proceedings concerning her daughter ' s claims had been unfair, that the judges dealing with the claims had been biased and that the length of the proceedings was excessive.

Both applicants relie d on Article 6 § 1 of the Convention in this context .

2. Under Article 10 of the Convention the first applicant complain ed that her right to freedom of expression had been violated in that the judge of the Bratislava City Court had not allow ed her to make a full oral statement in the proceedings concerning the validity of the purchase contract.

The second applicant alleged a violation of Article 10 of the Convention in that she could not orally intervene at the hearing before the Bratislava City Court in the proceedings concerning the validity of the purchase contract.

3. The first applicant complained that she had no effective remedy at her disposal in respect of her above complaint under Article 10 of the Convention. The second applicant complained about the absence of an effective remedy in that she had not been allowed to act as a third party to the proceedings on her daughter ' s claims. The applicants invoked Artic le 13 of the Convention .

4. The first applicant also allege d a violation of Article 1 of Protocol No. 1 in that the courts had dismissed her claim concerning the validity of the purchase contract and that they had not grant ed her claim of 30 August 1991 .

5. Under Article 14 of the Convention the first applicant complained that by their conduct and decisions the courts had discriminated against her and had restricted her right to freely present her views in the proceedings before them. T he second applicant alleged a violation of Article 14 of the Convention in that the Supreme Court had found that she lacked standing to file an appeal on points of law in those proceedings.

THE LAW

1. The applicants complained that their right to a fair hearing by an independent tribunal had been violated. They also complained about the length of the proceedings. The y relied on Article 6 § 1 of the Convention the relevant part of which provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ... “

a) To the extent that the second applicant alleged a violation of her rights under Article 6 § 1 of the Convention in the context of the proceedings concerning the first applicant ' s above claims, the Court notes that the Bratislava III District Court dismissed, on 7 June 1994, the first applicant ' s request for admission of the second applicant as a third party to the proceedings. At the hearing the parties stated that they waived their right to appeal against this decision. In their decisions of 24 March 1999 and of 3 December 2003 respectively the Supreme Court and the Constitutional Court confirmed this position.

Thus the second applicant was not a party to the proceedings complained of and she cannot, therefore, claim to be a victim of a violation of her rights under Article 6 § 1 of the Convention in their context.

It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

b ) As regards the first applicant ' s complain t that the proceedings concerning the validity of the purchase contract were unfair and that the courts decided arbitrarily , the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among other authorities, Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the proceedings complained of the Bratislava III District Court, on 2 7 October 1994 , dismissed the first applicant ' s claim after having heard the parties and the second applicant and after having taken other evidence including an expert opinion. The first instance court gave sufficient reasons for its decision in which it addressed in detail the arguments of the first applicant and stated on wh at evidence it had relied. In the appellate proceedings the Bratislava City Court found that the evidence taken at first instance was sufficient for determining the action and that the District Court had correctly decided on the case. The appellate court held that the taking of further evidence as requested by the first applicant w as superfluous . Subsequently, the Supreme Court concluded, with refer ence to the record of the hearing before the appellate court , that the first applicant had been given a sufficient opportunity to present her case.

In the light of the documents before it the Court finds that the domestic courts gave sufficient and relevant reasons for their decisions which do not appear arbitrary. It further takes the view that the alleged restrictions which the appellate court imposed on the first applicant as regards the presenting of the case and the proposed taking of further evidence did not render the proceedings as a whole unfair and c ontrary to the requirements of Article 6 § 1 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.

c) To the extent that the first applicant complain ed about the unfairness of the proceedings concerning her claim of 30 August 1991 , the Court notes that the Constitutional Court reject ed her complaint in respect of these proceedings as she had failed, despite a prior request, to submit i t in accordance with the formal requirements .

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

d) The first applicant allege d that the judges dealing with her claims had lacked independen ce and that they had been biased.

The Court notes that the first applicant did not challenge the judges dealing with her claim concerning the validity of the purchase contract . She failed to raise this complaint in respect of the proceedings concerning her claim of 30 August 1991 in due form before the Constitutional Court pursuant to Article 127 of the Constitution, as in force since 1 January 2002.

It follows that this part of the application also must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

e ) The first applicant further complain ed about the length of the proceedings concerning her claims.

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 first applicant complain ed that her right to freedom of expression had been violated in that the judge of the Bratislava City Court ha d not allow ed her to present in full her oral statement in the proceedings concerning the validity of the purchase contract. The second applicant complained that she could not intervene orally at the hearing before the Bratislava City Court in the same proceedings. The applicants relied on Article 10 of the Convention the relevant part of which provides:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Court has above examined under Article 6 § 1 of the Convention the complaint relating to restrictions imposed as regards the oral presentation of the case in the proceedings before the Bratislava City Court concerning the validity of the purchase contract. It finds that no issue under Article 10 of the Convention arises in this respect.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The first applicant complain ed that she had no effective remedy at her disposal in respect of her above complaint under Article 10 of the Convention. The second applicant complained that she had not been allowed to act as a third party to the proceedings brought by her daughter. B oth applicants relied on Article 13 of the Convention which provides as follows:

“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.”

The Court recalls that 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 found above that the first applicant ' s com plaint under Article 10 of the C onvention was manifestly ill-founded. As regards the second applicant ' s complaint that she had not been allowed to act as third party in judicial proceedings brought by her daughter, the Court notes that neither Article 6 nor any other provision of the Convention guarantees such a right .

In these circumstances, the applicants have no arguable claim for the purposes of Article 13 and this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

4. The first applicant complain ed that the courts had dismissed her claim concerning the validity of the purchase contract and that they had not grant ed her other claim relating to damage which the defendants had caused to her property. She allege d a violation of Article 1 of Protocol No. 1 which provides 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.”

a) The domestic courts concluded, for reas ons set out in their decisions, that the first applicant had not shown that the purchase contract which she had concluded with the defendants in 1982 was flawed and that the statutory requirements for declar ing it null and void were met. The Court has found above that that conclusion was not arbitrary.

In these circumstances , t he Court sees no basis on which it could find that the dismissal of the first applicant ' s claim was contrary her right to the peaceful enjoyment of her possessions as guaranteed by Article 1 of Protocol No. 1 .

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

b) As to the first applicant ' s complaint about a violation of her property rights in the context of the proceedings leading to the Supreme Court ' s decision of 28 May 2003, the Court notes that she failed to raise it in due form before the Constitutional Court pursuant to Article 127 of the Constitution, as in force since 1 January 2002.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

5 . The first applicant also complain ed that by their conduct and decisions the ordinary courts had discriminated against her and had restricted her right to freely present her views in the proceedings before them. The second applicant complained that she had been discriminated against in that the Supreme Court had found that she lacked standing to file an appeal on points of law in the proceedings concerning the purchase contract. They relied on Article 14 of the Convention which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court has examined the se complaints but finds, to the extent that such complaints were substantiated and fall within its competence, that they do not disclose any appearance of a violation of the applicant s ' rights under the Convention.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the exa mination of the first applicant ' s complain t about the length of the proceedings con cerning her claims of 30 August 1991 and of 2 March 1992 ;

Declares the remainder of the application inadmissible.

Michael O ' Boyle Nicolas Bratza Registrar President