FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40000/98 by M á ria BARÁTHOVÁ against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 10 December 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs E. Palm , Mrs V. Strážnická , Mr S. Pavlovschi , Mr L. Garlicki , judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 27 October 1994,

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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs M ária Baráthová, is a Slovakian national , born in 1952 and living in Vráble , Slovakia. The respondent Government were represented by Mr P. Vr šanský, their Agent.

A. The circumstances of the case

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

In accordance with a State Notary’s decision delivered in 1979 the applicant became the owner of a plot of land which had belonged to her grandfather. The land was used by an agricultural co-operative which put it at the disposal of the Slovak Union of Gardeners in 1986.

On 2 December 1990 the applicant claimed restitution of the land from the co-operative. On 13 March 1991 the applicant was informed that the co-operative would terminate the agreement which it had concluded with the Slovak Union of Gardeners and then restore the land to the applicant.

In a letter dated 21 June 1991 and addressed to the Slovak Union of Gardeners the co-operative terminated the lease of the land. The representatives of the Slovak Union of Gardeners replied that the lease was governed by the relevant provisions of the Land Ownership Act of 1991.

In a letter of 20 December 1991 the representatives of the Slovak Union of Gardeners informed the applicant that, in accordance with the relevant law, the members of the Union had the right to use the land until 2006 with the possibility of having this right extended until 2016. The representatives further proposed to pay a rent to the applicant or, in the alternative, to purchase the land. Reference was made to the relevant price regulations.

On 18 August 1992 the applicant lodged a civil action against the Slovak Union of Gardeners with the Nitra District Court. She demanded the payment of rent for the use of her agricultural land.

On 30 December 1992 the court rejected the applicant’s petition for exemption from the obligation to pay the court fees. On 19 March 1993 the Bratislava Regional Court upheld this decision.

On 31 May 1993 the Regional Court dismissed the applicant’s request for exclusion of the District Court’s judge. Subsequently the District Court took documentary evidence.

On 16 September 1994 the District Court delivered a judgment in which it confirmed the applicant’s entitlement to rent in an amount lower than claimed by the applicant. The applicant appealed on 27 October 1994.

On 2 March 1995 the Regional Court quashed the District Court’s judgment and instructed the first instance court to establish, in particular, whether the defendant had the right to use the land.

On 23 May 1995 the applicant sought to extend her action by claiming restitution of the land in question. On 29 June 1995 the District Court dismissed the applicant’s request. Reference was made to Article 95 (2) of the Code of Civil Procedure pursuant to which such a request may not be granted when the evidence already taken cannot serve as a basis for a decision on the additional claim. The decision stated that determining the additional claim would unduly prolong the proceedings and that the applicant was free to file a separate action with a view to claiming the restitution of the land.

On 27 June 1996 the District Court delivered a judgment in which it confirmed the applicant’s right to receive compensation for the use of her land. The District Court established, with reference to documentary evidence, that in 1986 the co-operative which had then used the land had put it at the disposal of the Slovak Union of Gardeners in accordance with the relevant law. The letter which the representatives of the co-operative sent to the Slovak Union of Gardeners on 21 June 1991 could not affect the 1986 agreement on the use of land as the co-operative had formally ceased to exist by 7 March 1991. The District Court further established, with reference to Section 22 (1) and (2) of the Land Ownership Act of 1991, that as from 24 June 1991, the right of the co-operative’s successor to use the land had ceased to exist, and that the Slovak Union of Gardeners had become a tenant of the land as from that date.

The applicant appealed on 22 October 1996 as the rent granted to her by the court was lower than the sum claimed by her.

On 1 January 1997 the case was assigned to a different judge of the District Court. The case file was transferred to the Nitra Regional Court on 18 August 1997.

On 20 May 1999 the Nitra Regional Court quashed the District Court’s judgment of 27 June 1996. The Regional Court found that the District Court had overlooked the fact that the land had been used by a different person since 1995, and that it had not ascertained whether the defendant was represented in accordance with the statutory requirements. In its decision the Regional Court also expressed its view as to how the rent due to the applicant should be determined.

On 5 August 1999 the case was assigned to a different judge of the Nitra District Court. On 22 May 2000 the latter asked the parties to submit further evidence.

Hearings before the District Court were scheduled for 20 November 2000 and 8 February 2001.

On 10 May 2001 the District Court imposed a procedural fine on the applicant and her representative as they had repeatedly failed to appear at hearings. The applicant appealed. On 12 September 2001 the Nitra Regional Court upheld the decision on the procedural fine.

Further hearings before the District Court were scheduled for 17 May 2001, 26 June 2001, 23 April 2002 and 30 May 2002. The proceedings are pending.

B. Relevant domestic law and practice

Constitutional provisions and practice of the Constitutional Court

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.

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.” ...

The implementation of the above constitutional provisions is set out in more detail in Sections 49 - 56 of Act No. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002.

After that date the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred.

According to an explanatory letter by the president of the Constitutional Court of 6 June 2002, nothing has prevented the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings were instituted also before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed.

The Land Ownership Act of 1991

The Land Ownership Act ( Zákon o úprave vlastníckych vz ť ahov k pôde a inému poľnohospodárskemu majetku ) entered into force on 24 June 1991.

Section 22 (1) terminated the right of co-operatives to use the land of owners who were not members of such co-operatives.

Paragraph 2 of Section 22 provides that, as from the entry into force of the Act and unless a different agreement is reached with the owner, the user of the land shall acquire tenancy rights in its respect.

Under Section 22 (3), as in force until 26 March 1997, in cases where the land is used by an association of gardeners the tenancy cannot be terminated before the date until which the land had been originally put at the disposal of such an association. Unless the parties otherwise agree, the tenants have the right to have the tenancy extended by ten years in such cases. The rent money and the purchase price in respect of such land shall be governed by the relevant regulations. The tenants shall have the right of pre-emption in the event that the owner decides to sell the land.

Section 22 (4) entitled the owners of land used by gardeners’ associations to request, within three years from the entry into force of the Act, to have such a land exchanged for a different plot of land owned by the State. The land to be proposed in exchange was required to correspond, as regards both its quantity and quality, to the original land and to be situated, where possible, in the same area.

Act No. 64/1997

Act No. 64/1997 governs the use of land within the colonies of gardeners and the transfer of ownership rights in its respect. In entered into force on 26 March 1997 and repealed Section 22 (3) of the Land Ownership Act.

Section 3 (1) provides that the users of the land governed by the Act shall become its tenants as from the entry into force of the Act. Paragraph 2 of Section 3 enumerates conditions under which the owner of the land is entitled to terminate the tenancy. Such a termination of tenancy is limited to cases where the tenant ( i ) is not using the land with due care, (ii) has constructed a building on the plot without authorisation, (iii) has sub-let the land to a third person without the owner’s consent or (iv) has failed to pay the rent, despite a prior warning, by 30 August following the year for which the rent is due.

The main purpose of Act No. 64/1997 is to permit the transfer of ownership of the land to tenants in colonies where the majority of tenants so request and where the owners disagree with the sale of the land (Section 7).

In such cases proceedings are brought in the course of which the owners can choose between financial compensation for their land and a different plot of land of corresponding surface area and quality which shall be put at their disposal within the same area (Section 10).

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings.

2. The applicant complains under Article 1 of Protocol 1 that ( i ) the land was not restored to her prior to the entry into force of the Land Ownership Act, (ii) the courts have not correctly determined her action of 18 August 1992, and (iii) that other persons have used her land unlawfully.

3. The applicant complains that she and here husband were subjected to inhuman and degrading treatment as a result of the way in which the Nitra District Court judge proceeded with the case. She relies, in substance, on Article 3 of the Convention.

4. The applicant also complains that she has been discriminated against. She relies, in substance, on Article 14 of the Convention.

5. Finally, the applicant alleges a violation of Article 13 of the Convention in that she has no effective remedy at her disposal as regards the alleged violations of her rights referred to above.

THE LAW

1. The applicant complains that the proceedings concerning her action have lasted an unreasonably long time. She relies 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 ... hearing within a reasonable time by [a] ... tribunal...”

The Government object that the applicant failed to exhaust domestic remedies as she did not file a constitutional complaint under Article 127 of the Constitution after the relevant amendment had entered into force on 1 January 2002.

The applicant maintains that she is not required to use the remedy referred to by the Government as she introduced her application prior to its enactment. She contends that the length of the proceedings has been excessive.

The Court has found that the complaint under Article 127 of the Constitution is an effective remedy, both in law and in practice, in the sense that it is capable of preventing the continuation of the alleged violation of the right to a hearing without undue delays and of providing adequate redress for any violation that has already occurred. It has held that the applicants in cases against Slovakia which concern the length of proceedings should have recourse to this remedy notwithstanding that it was enacted after their applications had been filed with the Court or the European Commission of Human Rights (see 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).

In the present case the proceedings complained of are still pending. The applicant has not shown that she lodged a complaint pursuant to Article 127 of the Constitution, as in force since 1 January 2002, with a view to obtaining redress in respect of the alleged delays in the proceedings.

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

2. The applicant complains that ( i ) the land was not restored to her prior to the entry into force of the Land Ownership Act, (ii) the courts have not correctly determined her action of 18 August 1992, and (iii) that other persons have used her land unlawfully. She invokes Article 1 of Protocol 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 applicant complains that her property rights were violated in that the land was not restored to her prior to the entry into force of the Land Ownership Act on 24 June 1991.

The Court notes that the facts complained of are prior to 18 March 1992 which is the date when the former Czech and Slovak Federal Republic, to which Slovakia is one of the successor states, ratified the Convention and recognised the right of individual application. Since the Convention only governs facts which are subsequent to its entry into force with respect to the Contracting Party concerned, this part of the application falls outside the Court’s temporal jurisdiction.

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

b) To the extent that the applicant complains that the courts failed to correctly determine her action of 18 August 1992, the Court notes that in its decision of 20 May 1999 the Nitra Regional Court instructed the District Court to eliminate formal shortcomings in the proceedings and also expressed its view as to how the rent due to the applicant should be determined. Since the proceedings are still pending, this part of the application is premature.

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

c) As to the applicant’s complaint that the members of the Slovak Union of Gardeners have used her land without any relevant legal basis, the Court notes that in its decision of 29 June 1995 the Nitra District Court stated that the applicant was free to seek redress by means of a separate action for restitution of the property. Since the applicant has not shown that she filed such an action, in this respect she has not exhausted domestic remedies as required by Article 35 § 1 of the Convention.

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

3. The applicant complains that she and here husband were subjected to inhuman and degrading treatment as a result of the way in which the Nitra District Court judge has proceeded with the case. The applicant also complains, with reference to the facts of the case, that she has been discriminated against. She relies respectively on Articles 3 and 14 of the Convention which  provide as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 14

“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 these complaints but finds, to the extent that such complaints have been substantiated and fall within its competence, that  they do not disclose any appearance of a violation of the applicant’s rights under the Convention or its Protocols.

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

4. Finally, the applicant complains that she has had no effective remedy at her disposal as regards the alleged violations of her rights referred to above. She alleges a violation of 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.”

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 the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicant’s other complaints are inadmissible. In these circumstances, the applicant did not have an “arguable claim”, and Article 13 is therefore inapplicable to her case.

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

Declares the application inadmissible.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President