FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58172/00 by Elem ír ZÁBORSKÝ and Edita ŠMÁRIKOVÁ against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 17 December 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 22 February 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Elem ír Záborský and Mrs Edita Šmáriková, are Slovakian nationals, who were born in 1912 and in 1917 respectively. They live in Bratislava.

A. The circumstances of the case

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

On 7 February 1992 the applicants claimed, together with several other persons, restitution of real property pursuant to the Extra-Judicial Rehabilitations Act of 1991. They alleged that their legal predecessors had donated the property to the State under duress.

On 11 January 1993 the Banská Bystrica District Court decided on the case. On 16 September 1993 the Banská Bystrica Regional Court quashed the decision and instructed the District Court to take further evidence.

On 11 December 1995 the Banská Bystrica District Court delivered a new judgment in which it ordered the defendant to restore the property in question to the plaintiffs. The judgment was served on the applicants on 13 August 1996. On 17 September 1996 the defendant appealed.

On 8 October 1996 the president of the Banská Bystrica District Court admitted, in reply to the applicants’ complaint that there had been undue delays in drafting the judgment of 11 December 1995 with reasons.

On 20 May 1997 the Banská Bystrica Regional Court quashed the District Court’s judgment of 11 December 1995 as being erroneous. It instructed the District Court to have the scope of the claim specified by the plaintiffs and to take further evidence.

On 18 June 1997 the applicants requested the Supreme Court that the case be transferred to a District Court in Bratislava. They objected, in particular, that the length of the proceedings was excessive.

On 24 September 1997 the applicants complained about delays in the proceedings to the Minister of Justice. The latter transmitted the complaint to the president of the Banská Bystrica District Court.

On 22 March 1999 the president of the Banská Bystrica District Court informed the applicants that the case file had been sent to an expert on 24 November 1998, and that the case would be proceeded with after the expert opinion has been submitted.

On 6 March 2000 the Banská Bystrica District Court dismissed the action, with reference to Section 8 (1) of the Extra-Judicial Rehabilitations Act, on the ground that the property in question had been substantially re-built as a result of which it had lost its original character. The court referred to conclusions reached by an expert and by the Construction Faculty of the Technical University in Ko šice . In particular, the opinion submitted by the latter indicated that more than sixty per cent of the property in question had been re-built.

The District Court had before it also an opinion submitted by the Construction Faculty of the Slovak Technical University in Bratislava concluding that the property in question should be restored. The court noted, however, that that opinion addressed mainly the questions of law and held that it was not conclusive when determining the question whether there had been substantial technical modifications of the property concerned. Finally, the District Court ordered the plaintiffs to pay the costs of the proceedings paid in advance by the State.

The plaintiffs appealed and claimed that only the inside of the building had been reconstructed and that the character of the building as such had not been substantially changed.

On 10 October 2000 the Banská Bystrica Regional Court upheld the first instance decision to dismiss the claim for restitution of property. The appellate court found it established, with reference to the above three expert opinions, that more than half of the ceilings and staircases in the building had been changed, and concluded that such modifications justified the conclusion that the structural and technical character of the property had substantially changed within the meaning of Section 8 (1) of the Extra-Judicial Rehabilitations Act. The Regional Court further quashed the first instance decision on the costs of  the proceedings.

On 6 April 2001 the Bansk á Bystrica District Court decided that the State was not entitled to have the costs of the proceedings reimbursed by the unsuccessful plaintiffs. Reference was made to the complex character of the point at issue and also to the length of the proceedings.

B. Relevant domestic law

Section 8 (1) of the Extra-Judicial Rehabilitations Act of 1991 ( Zákon o mimosúdnych rehabilitáciách ) provides that buildings which have lost their original structural and technical character as a result of a substantial reconstruction are excluded from restitution under that Act.

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention that the dismissal of their claim was arbitrary and about the length of the proceedings.

THE LAW

The applicants complain about the dismissal of their claim for restitution of property and that the proceedings concerning this issue lasted an unreasonably long time. They rely on Article 6 § 1 of the Convention the relevant par 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...”

a) To the extent that the applicants complain about 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 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

b) As to the applicants’ complaint that the dismissal of their action was arbitrary, 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 the García Ruiz v. Spain judgment of 21 January 1999 , Reports of Judgments and Decisions 1999-I, pp. 98-99, § 28).

The Court notes that the domestic courts duly examined the applicants’ claim but found, for reasons expressly set out in their judgments of 6 March 2000 and of 10 October 2000 respectively, that the property in question fell outside the Extra-Judicial Rehabilitations Act as it had undergone substantial structural and technical changes within the meaning of Section 8 (1) of that Act. The Court finds no indication that these decisions were arbitrary or that the proceedings leading to their delivery were unfair contrary 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaint about the length of the proceedings;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President