FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52555/99 by Elfrída VARGOVÁ and Jozef VARGA against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 31 August 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges ,

and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 20 April 1999 ,

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

Having deliberated, decides as follows:

THE FACTS

The first applicant, Ms Elfrída Vargová , was born in 1918 and died in August 2000 . She was a Slovakian national . The second applicant, Mr Jozef Varga, is a Slovakian national who was born in 1950 and lives in Košice . He is the first applicant ’ s son and her universal heir . H e expressed the wish to continue the application also in his mother ’ s stead.

A. The circumstances of the case

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

On 3 April 1992 the first applicant claimed restitution of a house before the Bratislava IV District Court. She relied on the Extra-Judic ial Rehabilitations Act of 1991.

On 21 December 1993 the District Court dismissed the claim. The judgment stated that the house had been taken away from the first applicant ’ s parents pursuant to President Bene š ’ s Decree No. 108/1945, in 1945 , and that the possibility of restoring property under the Extra-Judicial Rehabilitations Act extended only to cases where the property had been taken away between 25 February 1948 and 1 January 1990 .

The first applicant appealed . She claimed that she had acquired the house in question as a n heir following her mother ’ s death in 1941. She concluded that the subsequent confiscation of the house had been void as at that time her parents no longer owned it and that she had never stopped being the owner of the property .

On 31 May 1994 the first applicant authorised the second applicant to represent her in the proceedings.

By a decision of 24 June 1994 the District Court ordered the first applicant to pay the court fees . On 11 July 1994 the first applicant appealed against this decision . At the same time she requested a waiver from the obligation to pay the fees . On 15 July 1994 the District Court decided not to exempt the first applicant from the obligation to pay the fees . On 18 October 1994 the Bratislava City Co urt quashed the decisions of 24 June and 15 July 1994 as the relevant law had been amended to the effect that no court fees were due in respect of proceedings under the Extra ‑ Judicial Rehabilitations Act .

By a separate decision delivered on 18 October 1994 the Bratislava City Court quashed the first instance judgment of 21 December 1993 and instructed the District Court to establish the relevant facts of the case .

On 5 June 1997 the Bratislava IV District Court again dismissed the first applicant ’ s claim . The court found void the confiscation of the property in question as the first applicant ’ s mother had died in 1941, that is prior to the confiscation . It noted that no inheritance proceedings had been held contrary to the relevant provisions of the Civil Code . The District Court further noted that the defendant had inherited the house from her predecessor and that the latter had bought it from the House Administration in Devínska Nová Ves on 30 May 1969. Accordingly, the former owner had not “transferred”, within the meaning of Section 4 of the Extra-Judicial Rehabilitations Act, the property to the defendant and the latter was not, therefore, obliged to restore it to the first applicant under the provisions of that Act.

On 1 August 1997 the first applicant appealed. She claimed, in particular, that the defendant was obliged to restore the property as her legal predecessor fell within Section 4 of the Extra-Judicial Rehabilitations Act.

On 21 October 1998 the Bratislava Regional Court upheld the first instance judgment of 5 June 1997 . The appellate court held that the confiscation had taken effect on 25 October 1945, that is outside the period covered by the Extra-Judicial Rehabilitations Act . It considered irrelevant that the property had been formally confiscated from the first applicant ’ s mother who had died in 1941.

The Regional Court further found that the property had not been “ transferred “ to the defendant within the meaning of Section 4(2) of the Extra-Judicial Rehabilitations Act as she had inherited it following the death of her legal predecessor . The judgment was served on the applicants on 29 March 1999 and the decision to dismiss the first applicant ’ s claim thus became final .

On 3 May 1999 the appellate court received the first applicant ’ s appeal on points of law . In it s he argued that the appellate court had failed to notify her of the defendant ’ s written submissions and that the composition of the appellate court ’ s panel had been changed just before the hearing in the case . The first applicant requested that a lawyer be appointed to re present her in the proceedings.

The case file was submitted to the Bratis lava IV District Court on 6 May 1999 . On 2 July 1999 the first applicant submitted a certificate concerning her financial situation at the court ’ s request.

On 17 December 1999 the District Court asked the defendant to submit comments on the first applicant ’ s appeal on points of law. The defendant replied on 10 January 2000 .

On 18 January 2000 the District Court submitted the case file to the Supreme Court. The latter returned the file to the District C ourt on 6 April 2000 with the instruction to decide on the first applicant ’ s request concerning the appointment of a lawyer. The District Court was further requested to clarify the circumstances in which the appellate court ’ s judgment had been served.

On 2 October 2003 the Government informed the Court that the District Court had not dealt with the case after the file had been returned to it.

On 12 February 2004 the Bratislava IV District Court urged the second applicant to inform it whether he had stayed at home between 11 and 15 March 1999 .

B. Relevant domestic law and practice

1. The Constitution

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 a petition ( podnet ) presented by any individual or a corporation claiming that their 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 the relevant part of which reads as follows:

“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person ’ s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation.

3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...

2. Constitutional Court Act

Under Section 49, complaints to Constitutional Court can be filed by natural or legal persons alleging that their fundamental rights or freedoms were violated unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

Section 53(3) provides that a complaint is to be filed within two months from the final effect of a decision or of notification of the interference complained of. That time-limit starts running from the moment when the plaintiff had a practical possibility of learning about such interference.

3. Extra-Judicial Rehabilitations Act of 1991

The aim of the Extra-Judicial Rehabilitations Act ( Zákon o mimosúdnych rehabilitáciách ) is to redress certain infringements of property and social rights which occurred between 25 February 1948 and 1 January 1989 .

Section 4(2) provides that any natural person who acquired property from the State contrary to any law in force at the relevant time, for a price inferior to any applicable price regulations, or on the basis of any unlawful advantage, is obliged to restore the property to its former owner. Where such persons transferred the property to other persons close to them, the latter are also obliged to restore it.

4. Constitutional Court ’ s practice

According to its case-law under former Article 130 ( 3 ) of the Constitution, as in force until 30 June 2001 , 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.

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 still lasted (decisions No. I. ÚS 34/99 of 20 May 1999 or III. ÚS 20 /00 of 12 April 2000 ). It has not examined complaints about length of proceedings in which a final decision had been delivered at the moment of introduction of such complaints.

In proceedings No. II Ú S 66/02 the plaintiff complained to the Constitutional Court about the length of two set s of proceedings pending before a district court. She also alleged a violation of her right to a hearing to a reasonable time by the appellate court which, in the context of one of the proceedi ngs complained of, had decided a n appeal against an injunction order by the district court. In its decision of 23 April 2002 the Constitutional Court declared admissible the complaint in respect of the proceedings before the district court. It further rejected the complaint about the interlocutory proceedings before the court of appeal on the ground that those proceedings had ended by a final decision prior to introduction of the complaint under Article 127 of the Constitution.

In proceedings 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 Ko šice II District Court in 1998. The q uestion arose whether the first instance and the second instance court judges were impartial. On 24 May 1999 the Supreme Court therefore transferred the case to the Žilina Regional Court . The case was then examined at first instance by the Michalovce District Court which decided the action on 11 December 2002. On 10 September 2003 the Žilina Regional Court upheld the first insta nce 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 states that the complaint about proceedings terminated by the Supreme Court ’ s decision of 24 May 1999 to transfer the case to a different court had been filed out of time since at the moment of introduction of the complaint to the Constitutional Court the co urts concerned were no longer dealing with the case. 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.

COMPLAINTS

The first applicant complained under Article 6 § 1 of the Convention that her action had been dismissed arbitrarily and that the length of the proceedings was excessive.

The first applicant further complained under Article 1 of Protocol No. 1 that her property rights had been violated in that the domestic courts had refused to grant her the restitution of the house in question.

Finally, the first applicant alleged a violation of Article 13 of the Convention in that she had no effective remedy at her disposal.

The second applicant originally claimed that he was to be considered as an indirect victim of the above alleged violations. Following the death of the first applicant, he claimed that he was to be considered as a direct victim of the above violations of Articles 6 § 1 and 13 of the Convention and of Article 1 of Protocol No. 1 since he has been the single son and the universal heir of the first applicant and since he had represented her in the proceedings complained of.

THE LAW

1. The applicants complained about unfairness and length of the proceedings concerning the restitution claim. They relied on Ar ticle 6 § 1 o f 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 a[n] ... tribunal ... ”

a) The Government first argued, with reference to the findings of the District Court and of the Regional Court , that the first applicant ’ s claim fell short of the requirements of the Extra-Judicial Rehabilitations Act of 1991. Consequently, the dispute in question did not concern any rights and obligations which were recognised in domestic law. Article 6 § 1 was therefore n ot applicable.

The second applicant disagreed and argued that the right to have property restored, on which he and his mother rel ied, was laid down in the Extra ‑ Judicial Rehabilitations Act.

The Court recalls that for Article 6 § 1, in its “civil” limb, to be applicable there must be a dispute ( contestation ) over a “right” that can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious. It may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Moreover, the outcome of the proceedings must be directly decisive for the civil right in question (see Frydlender v. France [GC], no. 30979/96, § 27, ECHR 2000-VII).

In the present case the first applicant claimed restitution of property under the Extra-Judicial Rehabilitations Act and the Government admitted that the second applicant replaced his mother in the proceedings on the appeal on points of law fo llowing his mother ’ s death. The above Act provides redress in respect of certain infringements of property and other rights under conditions laid down in it. The Court notes that the domestic courts at two levels c onsidered the applicants ’ claim and that, after having taken evidence, they concluded that the first applicant had failed to prove that s he had the right claimed.

In these circumstances, the Court is satisfied that there was a genuine and serious dispute over the existence of the applicants ’ civil right which was recognised, at least on arguable grounds, in domestic law . The fact that the action was eventually dismissed as not falling within the provisions of the relevant law cannot affect this conclusion. The Court therefore finds that the proceedings at issue fall within the scope of Article 6 § 1 of the Convention.

b) The applicants complained that the dismissal of the first applicant ’ s action had been arbitrary.

The Government argued that the application was premature as the proceedings on the appeal on points of law were still pending.

The second applicant contended that the proceedings on appeal on points of law concerned procedural aspects of the case only and that the first and the second instance court had committed errors of facts and law.

The Court notes that the question whether or not proceedings were fair within the meaning of Article 6 § 1 of the Convention is to be determined in the light of the proceedings as a whole including the decision of the appellate court and, where appropriate, also that of the court of cassation. Since the appeal on points of law filed by the first applicant has not yet been decided upon, the Court concurs with the Government that this part of the application is premature.

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

c ) The applicants also complained under Article 6 § 1 about the length of the proceedings .

T he Government maintained that the second applicant, as the universal heir of the first applicant, had become a party to the proceedings on the appeal on points of law. In that capacity, it has been open to him to complain about the length of the proceedings to the Constitutional Court under Article 127 of the Constitution, as in force since 1 January 2002 . The Government concluded that domestic remedies had not been exhausted in respect of this complaint.

The second applicant argued that prior to the death of his mother in 2000 the remedy invoked did not exist. The decision on dismissal of his mother claim became final in 1999 , that is prior to the introduction of the remedy invoked by the Government, and under the rel evant provisions of the Constitutional Court Act a complaint under Article 127 of the Constitution was to be submitted within two months from the moment when a decision has become final. In addition, the applicant argued that he cannot complain under Article 127 of the Constitution about the length of the proceedings leading to the Regional Court ’ s judgment as he had not been a party to those proceedings. As to the length of the proceedings, the second applicant submitted that the domestic courts failed to proceed with the case in an appropriate manner and that unjustified delays occurred.

( i ) As regards the complaint about the length of the proceedings introduced by the second applicant, t he Court notes that he originally represented his mother in the restitution proceedings and that , as indicated by the Government, he only became a party to those proceedings following the first applicant ’ s death . The second applicant can therefore claim in person to be a victim, within the meaning of A r t icle 34 of the Convention, of his right to a hearing within a reasonable time only from August 2000 when the first applicant died.

At that time the proceedings on the first applicant ’ s appeal on points of law were introduced and those proceedings are still pending. In view of the Constitutional Court ’ s practice, the Court finds that the second applicant can seek redress in respect of the alleged delays in the proceedings on the appeal on points of law by means of a complaint under Article 127 of the Constitution (see, mutatis mutandis , Andr ášik and Others v. Slovakia ( dec .), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002). As the second applicant did not avail himself of this remedy, he has not exhausted , in respect of his own complaint about the length of the proceedings, domestic remedies as r equired by Article 35 § 1 of the Convention.

It follows that , to the extent that he can claim to be a victim, this complaint of the second applicant must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

(ii) As regards the complaint about the length of the restitution proceedings introduced by the first applicant, the Court notes that the second applicant, who is the first applicant ’ s son and universal heir, expressed the wish to continue the application in his late mother ’ s stead. I n similar cases t he Court has taken into account the statements of the applicant ’ s heirs or of close members of his or her family who expressed the wish to pursue the proceedings before the Court and found that such persons were entitled to take the late applicant ’ s place (see, for example, Deweer v. Belgium , judgment of 27 February 1980, Series A n o. 35, pp. 19 ‑ 20, §§ 37 ‑ 38; Raimondo v. Italy , judgment of 22 February 1994, Series A no. 281-A, p. 8, § 2). The Court will therefore continue the examination of the first applicant ’ s complaint about the overall length of the proceedings at the request of Mr J. Varga it being understood that his la te mother remains the applicant .

The Court finds that issues as to the availability of redress or effectiveness of the remedy in voked by the Government arise under the substantive complaint made by the first applicant under Article 13 in conjunction with Article 6 § 1 of the Convention in respect of this part of the application . It considers that the submissions made by the Government concerning non-exhaustion are closely connected with these aspects. They should therefore be joined to the merits of the application and reserved for later consideration.

In the light of the parties ’ submissions, the Court considers 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.

2. The applicants further complained that the restitution claim originally filed by the first applicant had not been granted. They relied on 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.”

The Government contended, with reference to the courts ’ findings in the proceedings complained of, that the restitution claim in question fell outside the Extra-Judicial Rehabilitations Act of 1991. It did not, therefore, amount to an asset attracting the guarantees of Article 1 of Protocol No. 1.

The second applicant disagreed and claimed that the proceedings related to property which had been unlawfully taken away from his predecessors and to the restitution of which his mother was entitled.

The Court notes that the subject-matter of the domestic proceedings complained of is the question whether or not the first applicant was entitled to have property restored which had been taken away from her family during period prior to the entry into force of the Convention with respect to Slovakia . Since the proceedings on the appeal on points of law are still pending and since those proceedings can, in principle, affect the outcome of the case, the Court finds that this complaint is also premature.

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

3. Finally, the applicants complained that they had no effective remedy at their disposal as regards their other Convention complaints. They 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.”

a) To the extent that the first applicant complained of absence of an effective remedy in respect of her complaint about the length of the proceedings, 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.

b) To the extent that the applicants complained that they had no effective remedy at their disposal in respect of their remaining complaints, t he Court recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a viola tion of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). It has found above that the remaining complaints of the applicants are inadmissible. For similar reasons, the applicants do not have an arguable claim in respect of those complaints and Article 13 is therefore inapplicable in this respect.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Joins to the merits the question of exhaustion of domestic remedies in respect of the first applicant ’ s complaint about the length of the restitution proceedings;

Declares admissible, without prejudging the merits, the first applicant ’ s complaint under Article 6 § 1 of the Convention concerning the length of the restitution proceedings and t he complaint under Article 13 of the Convention about alleged absence of an effective remedy in this respect;

Declares inadmissible the remainder of the application.

Michael O ’ Boyle Nicolas Bratza Registrar President