FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48674/99 by Cec í lia KANDRÁČOVÁ and Others against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 27 January 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 Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 12 October 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 2 July 2002,

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 applicants, whose names appear in the appendix, are siblings. They are Slovakian nationals. The respondent Government were represented by Mr P. Kresák, their Agent.

The circumstances of the case

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

On 24 February 1992 the applicants lodged an action for restitution of property under the Extra-Judicial Rehabilitations Act of 1991 with the Bratislava - vidiek District Court ( Okresný súd ) . They relied on Sections 2 § 1 and 6 § 2 of this Act and claimed that real property which formed a part of their late parents’ estate and which was in the possession of two individuals should be restored to them.

On 17 March 1992 the District Court delivered a copy of the action to the defendants.

On 21 March 1992 the applicants authorised an advocate to represent them in the proceedings.

On 23 March 1992 the applicants filed a motion to the District Court to secure evidence by hearing two witnesses. They drew the court’s attention to the fact that the two witnesses were aged and in a poor state of health which did not permit them to appear in court. At the same time, they informed the court of the appointment of their lawyer and submitted additional documentary evidence.

On 27 March 1992 the defendants requested an extension of the time ‑ limit for filing their observations in reply to the action.

On 4 April 1992 the defendants authorised a lawyer to represent them in the proceedings and, on 8 April 1992, they submitted their observations.

By a letter of 27 April 1992 the defendants requested that a hearing scheduled for 20 May 1992 be adjourned as their lawyer was unable to attend on that date.

On 21 May 1992 the applicants’ lawyer requested that a hearing scheduled for 3 June 1992 be adjourned at least until 20 June 1992 due to health problems of one of the applicants.

In consequence of a certificate issued by a doctor on 8 June 1992, the participation of one of the defendants in the lawsuit was judged inappropriate as it could bring about deterioration in her health.

On 13 July 1992 the District Court held a hearing. Two applicants and one defendant were not present. Their lawyers however excused their absence and took part in the hearing. The defendants’ lawyer proposed that, having regard to the medical condition of his absent client, it might be appropriate to hear her at her home.

On 16 July 1992 one of the applicants requested that the District Court hear eleven witnesses. She pointed out that two of the witnesses were aged and were in poor health.

On 28 July 1992 the District Court held the second hearing. One applicant and one defendant were not present but they excused their absence through their lawyers who took part in the hearing.

On 16 September 1992 the District Court held the third hearing. Two applicants were not present but their lawyer, who was present, apologised for their absence.

At an unspecified time the legal representative of the applicants requested that the District Court hear no witnesses before 10 November 1992.

On 30 November 1992 the legal representative of the defendants requested that the District Court hear witnesses only after 15 December 1992.

The District Court, acting through another judge (the second judge), had to adjourn the hearing scheduled for 19 April 1993 as none of the invited witnesses appeared, one of them having died in the meantime and one being seriously ill.

On 25 June 1993 and on 27 September 1993 the applicants amended their action and submitted supplementary evidence in support of it.

On 8 October 1993 the defendants submitted their observations in reply to the amended action.

On 14 March 1994 the applicants complained about delays in the proceedings to the President of the District Court. On 16 May 1994 they sent a similar complaint to the Minister of Justice.

On 31 May 1994 the President of the District Court informed the applicants that the judge dealing with the case had a heavy workload and that there was a shortage of judges at that court. He further informed them that the progress of case would be under supervision in order to avoid further delays.

In July and August 1994 the applicants requested that the District Court promptly hear S., another witness. They pointed out that S. was elderly and in a poor state of health which prevented him from appearing in court. On 6 September 1994 a trainee judge ( právna čakateľka ) of the District Court heard S. at his home. The witness maintained that he could only take part in a court hearing after the completion of medical treatment that was to commence on 12 September 1994. No party to the proceedings took part in that hearing. On 8 September 1994 the District Court sent a copy of the record of the hearing to the parties.

On 27 September 1994 the defendants challenged the truthfulness of the testimony of S. and requested that he be re ‑ heard in a courtroom.

At the end of 1994, the case was assigned to another judge (the third judge) in accordance with the general annual re ‑ allocation of cases for the judicial year 1995.

On 23 January 1995 the District Court held the fourth hearing. Three applicants and one defendant did not appear. Their representatives took part in the hearing and excused them.

On 24 March 1995 the applicants requested that the District Court hear several witnesses. They drew the court’s attention to the fact that the witnesses were aged and that several witnesses whom they had previously proposed to hear had died.

On 27 March 1995 the District Court held the fifth hearing.

On 25 April 1995 the applicants requested that the District Court hear one of the defendants.

On 4 April 1995 the District Court scheduled that defendant’s hearing for 20 April 1995. However, the hearing could not take place and had to be postponed as, by that time, the postal service had not provided a report showing that the invitations had been served on the parties in time. The hearing took place at the defendant’s home on 30 May 1995.

On 1 June 1995 one of the applicants requested the District Court not to schedule a hearing before 24 June 1995 as she would be on a business trip until that date.

The hearing called for 26 June 1995 was adjourned and the District Court ordered the applicants to submit further documentary evidence. The applicants complied on 28 June 1995.

On 28 July 1995 a District Court Judge heard another witness.

In a submission of 8 August 1995 the applicants restated their action in that they sought a judicial ruling declaring them to be the owners of the property in question.

On 11 August 1995 the defendants submitted their observations in reply to the restated action.

At the sixth hearing held before the District Court on 17 August 1995, the applicants, through their lawyer, confirmed that they wished to modify the original subject ‑ matter of their action. They undertook to submit a newly reformulated version of their action within three days.

On 21 August 1995 the applicants submitted the amended action in which they sought a judicial ruling declaring void a donation agreement and ordering the defendants to restore the real property in issue to them.

On 19 September 1995 the defendants filed their observations in reply to the redrafted action.

At the seventh hearing held on 21 September 1995 the District Court decided not to grant the applicants leave to change the subject ‑ matter of their action.

On 27 September 1995 the applicants filed their final submission.

On 5 October 1995, following the eighth hearing, the District Court dismissed the action. It found, inter alia , that the applicants had failed to prove that their legal predecessors had formally owned the property in question. It further found that it had not been established that the State had taken over the property and that the defendants had acquired the property from the State contrary to the rules then in force which were the prerequisites for granting the claim. The decision was served on the legal representatives of the parties on 28 December 1995.

On 12 January 1996 the applicants appealed. They argued inter alia that their title to the property was based on hereditary succession and that, in the past, the State has actually prevented them from using the property at issue.

On 8 February 1996 the defendants filed their comments on the appeal.

On 12 September 1996, following a hearing, the Bratislava Regional Court upheld the first instance judgment. It found that the evidence available indicated that the property in question had never been formally transferred to the State. The fact that the State had actually disposed of the property had no bearing on this conclusion. The defendants had acquired the property by succession and by donation inter vivos within their family. The Regional Court therefore concluded that the requirements for the restitution of the property were not met.

On 7 March 1997 the applicants filed an appeal on points of law to the Supreme Court. The latter declared it inadmissible on 26 February 1998 having found no shortcomings in the proceedings which would justify quashing the Regional Court’s judgment.

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention that the length of the proceedings had been excessive.

THE LAW

The applicants complained about the length of their proceedings. They alleged a violation of 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 [a] ... tribunal...”

The Government primarily maintained that the proceedings fell outside the scope of Article 6 § 1 of the Convention since the right to restitution which the applicants had asserted had not had even an arguable basis in domestic law. They relied on the findings of the District Court and of the Regional Court expressed in their respective judgments of 5 October 1995 and 12 September 1996 that the applicants had no standing to claim restitution of property under the relevant laws and that, even assuming they had, they had failed to prove that the property was to be restored to them under these laws. The Government concluded that the application was incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and had to be rejected in accordance with Article 35 § 4.

The Government further claimed that the case had been factually, legally and procedurally complex. Three of the applicants based their claim on hereditary succession after the death of one relative who had co-owned the property. The other two applicants based their claim on hereditary succession after the death of another relative who had also had an ownership interest in it.

The applicants disputed the accuracy of the entries in the public property records concerning the property at stake, which dated back to the 1950s and 1960s. This meant that nine witnesses had to be heard, some of whom were elderly and in poor health and had to be heard at their home. It further meant that the courts had had to obtain and examine an extensive amount of old documentary evidence.

As regards the conduct of the parties, the Government pointed out that on 27 March 1992 the defendants had asked the District Court to postpone the deadline for filing their observations in reply to the action and on 27 April 1992 they had requested that a hearing scheduled for 20 May 1992 be postponed. On 21 May 1992 the applicants’ lawyer requested that a hearing scheduled for 3 June 1992 be postponed at least until 20 June 1992. On 1 June 1995 one of the applicants requested that the District Court should not order any hearing until 24 June 1995. The Government further contended that, at a number of hearings held before the District Court, several applicants and one defendant had failed to appear in person.

As to the conduct of the State authorities, the Government accepted that there had been delays in the proceedings imputable to the District Court, in particular, the delays found by the President of the District Court on 31 May 1994. However, after this date the courts had handled the case expeditiously and without undue delays.

The Government emphasised that the subject matter of the proceedings was not of particular importance for the applicants within the meaning of the Court’s case ‑ law on length of proceedings cases.

In the light of the above, as an alternative to their primary proposal, the Government invited the Court to find the application manifestly ill ‑ founded and to reject it under Article 35 §§ 3 and 4 of the Convention.

The applicants pointed out that, after the hearings of 20 May and 3 June 1992 had had to be cancelled, the District Court had heard the case for the first time only on 13 July 1992. They objected that their case had been unnecessarily assigned to several different judges who had often proved to be unprepared for the hearings. The applicants emphasised that, despite their repeated requests, it had taken the District Court three years and three months to hear one of the defendants. They also contended that, once the District Court had finally scheduled a hearing of this defendant for 20 April 1995, it had erroneously failed to invite them to this hearing in time. The hearing had thus to be rescheduled for 30 May 1995.

As to the Government’s argument that the parties failed to take part personally in some of the hearings, the applicants argued that in all the hearings the parties were present through their lawyers.

Finally, the applicants objected that, due to the excessive length of the proceedings, it had been impossible to hear six witnesses who had died in the meantime.

The Court reiterates 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 applicants claimed restitution of property under the Extra-Judicial Rehabilitations Act. They based their claim on Section 2 § 1 in conjunction with and 6 § 2 of this Act. The Court notes that the domestic courts at three levels of jurisdiction had considered the applicants’ claim and that, after having heard numerous witnesses and having examined complex evidence, they concluded that the applicants had failed to prove that they 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. The mere fact that the applicants’ action was eventually dismissed cannot affect this conclusion. The Court therefore considers that the proceedings at issue fall within the scope of Article 6 § 1 of the Convention.

The Court further reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender , cited above, § 43).

The Court notes the proceedings commenced on 24 February 1992 when the applicants filed their action. The period to be considered however commenced on 18 March 1992 when the Convention entered into force in respect of the former Czech and Slovak Federal Republic, to which Slovakia is one of the successor states. It ended on 26 February 1998 when the Supreme Court gave its decision. It thus lasted 5 years, 11 months and 8 days.

The Court observes that the case was of some procedural complexity. This was inter alia due to the number of parties (five plaintiffs and two defendants), the number of witnesses (nine), the advanced age and fragile health of some of them and the nature of the evidence to be taken and assessed.

As to the conduct of the parties, the Court takes note that the defendants once asked the District Court to extend a deadline for filing their observations in reply (27 March 1992), once requested an adjournment of a scheduled hearing (27 April 1992) and once requested that no witnesses be heard before a specified date (30 November 1992). The applicants once requested an adjournment of a hearing (21 May 1992), once asked that no witnesses be heard before a specific date (prior to 10 November 1992) and once requested that no hearing be scheduled before a specified date (1 June 1995). The Court also notes that the applicants several times substantially supplemented their action and, in August 1995, they reformulated it modifying its subject matter.

As regards the conduct of the authorities, the Court observes that the case was examined by courts at three levels of jurisdiction. The trial court (the District Court) held eight hearings and the court of appeal (the Regional Court) held one.

At the District Court, the case was dealt with by three different judges and one assistant judge. It is true that this fact might have resulted in some delays. However, the change of judge in late 1994 appears to be justified by the general re ‑ allocation of cases for the judicial year 1995. Likewise, the hearing of the witness by a trainee judge on 6 September 1994 appears to be well justified by the circumstances of the case.

The Court also observes that, in his letter of 31 May 1994, the President of the District Court acknowledged that there had been some delays in the proceedings prior to that date. Nevertheless, even at this time, the District Court was not completely inactive. It held three hearings (13 July, 28 July and 16 September 1992) and scheduled yet another three (20 May and 3 June 1992 and 19 April 1993). The District Court also obtained the defendants’ observations on the amended action (October 1993).

The Court further notes that, in his above quoted letter, the President of the District Court agreed to have the case under supervision so as to avoid further delays in the proceedings. After the said date, the Court has found no substantial periods of inactivity of the District Court (see, for example, Zimmermann and Steiner v. Switzerland , judgment of 13 July 1983, Series A no. 66, p. 12, § 29).

Having regard to the foregoing considerations, the Court concludes that the overall length of the proceedings was not contrary to the requirements laid down in Article 6 § 1.

It follows that the application 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 the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President

A P P E N D I X

LIST OF THE APPLICANTS

1. Ms Cecília Kandráčová , who was born in 1943, resides in Bratislava;

2. Mr Vladimír Burdan , who was born in 1954, resides in Bratislava;

3. Ms Terézia Sabová , who was born in 1945, resides in Bratislava;

4. Ms Katarína Ludvigová , who was born in 1952, resides in Bratislava;

5. Mr. František Burdan , who was born in 1952, resides in Bratislava.