FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47806/99 by Ivica HAJDU Č EKOVÁ against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 8 October 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 16 November 1998,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Ivica Hajdučeková, is a Slovakian national, who was born in 1967 and lives in Ko šice .

A. The circumstances of the case

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

By a judgment delivered on 25 June 1996 the Ko Å¡ice I District Court granted the divorce of the applicant and her husband. The applicant obtained custody of the child born out of wedlock.

On 22 July 1996 the applicant sued her former husband before the Ko Å¡ice I District Court. She claimed that the joint tenancy of the flat in which she had lived together with the defendant be annulled and that she should be declared its exclusive tenant.

Subsequently the father of the applicant’s former husband exchanged the flat for a smaller one with another person. On 21 August 1996 the municipality which owned the flat in which the applicant and her former husband had lived approved of the exchange. 

On 21 September 1996 the applicant was prevented from entering the flat as the lock had been changed. She called the police who established that the tenancy rights had been transferred to the above person who turned out to be the new partner of the applicant’s former husband.

On 23 September 1996 the applicant complained to the Ko šice I District Prosecutor ’s Office that by approving the exchange the municipality had acted unlawfully.

On 15 November 1996 the Ko šice I District Prosecutor informed the applicant that no action would be taken on her petition. The letter stated that the mayor had not exceeded his powers and that the person with whom the applicant’s father-in-law had exchanged the flat had acquired tenancy rights in its respect by virtue of an agreement with the municipality concerned dated 22 August 1996. The letter further indicated that public prosecutors had no power to examine whether the tenancy of the flat had been transferred to the applicant’s former husband in accordance with the relevant law as alleged by the applicant. That issue was to be determined, as a preliminary question, by the courts deciding on the applicant’s action for the joint tenancy to be terminated.

On 19 December 1996 the Ko šice I District Court dismissed the applicant’s action of 22 July 1996. The court established, after having heard several witnesses and with reference to the documentary evidence available, that the applicant and her former husband had never formally become tenants of the flat. The judgment stated that the flat had been allocated to the father of the applicant’s former husband. The joint tenancy of the flat by the applicant and her former husband could not be derived from the fact that they had lived in the flat as they had failed to meet the statutory requirement that they lived in the flat in a common household together with the user to whom the flat had been allocated. The District Court further held that the transfer of tenancy to the applicant and her former husband was excluded as the apartment in question had been allocated to her former father-in-law in his capacity of an employee of a public organisation.

On 14 February 1997 the applicant appealed and challenged the conclusions reached by the first instance court.

The applicant also applied to the District Court to issue an interim measure prohibiting the new user from purchasing the flat pending the outcome of the proceedings in the applicant’s above action. On 10 July 1997 the Ko šice I District Court dismissed the request noting, with reference to the above judgment of 19 December 1996, that the applicant had not shown that she had any right in respect of the flat in question. On 23 July 1997 the applicant filed an appeal against this decision.

On 16 October 1997 the applicant challenged the Regional Court judges. She alleged that her former husband, who was a public prosecutor at the Ko šice Regional Prosecutor ’s Office, knew all the Regional Court judges in Ko šice and had friendly relations with several of them. The applicant further argued that Regional Court judge C. was on friendly terms with her former husband’s mother as the latter had been the superior of the judge’s wife.

On 30 March 1998 the Supreme Court decided that the Regional Court judges to whom the case fell to be examined were not biased. Reference was made to statements by two of the judges according to which they did not know the applicant and her former husband. The Regional Court further noted that judge C. had stated that he had no professional or other contacts with the applicant’s former husband and that he had no relationship with the latter or his mother.

The Supreme Court held that the existence of any personal interests or relations in respect of the parties in the proceedings which could affect an objective assessment of the facts of the case by the three judges concerned had not been established. In particular, there was no indication that the applicant’s former husband had any personal contacts with the judges, and the fact that he worked with the Regional Prosecutor’s Office did not, as such, cast doubts on the impartiality of the judges. Furthermore, it was not shown that judge C. had relations with the mother of her former husband, and the fact that she had been the hierarchical superior of the wife of judge C. related to the past. The Regional Court concluded that the applicant’s fear concerning the lack of impartiality of the judges was not supported by any objective facts.

In the meantime, the applicant learned that the new tenant had requested the municipality to sell the flat to her in accordance with the legislation on sale of municipal apartments. The applicant informed the municipality concerned about the proceedings concerning her action and requested that the sale be suspended.

On 4 March 1998 the Ko šice I District Court issued an interim measure, at the applicant’s request, prohibiting the Košice I District Office from entering the transfer of ownership of the flat in the land registry pending the delivery of a final decision in the applicant’s action. When delivering this decision the District Court apparently was not aware of the fact that the Ko šice I District Office had already given leave for the relevant entry to be made in the land registry on 23 Februrary 1998. The applicant learned about the transfer of the ownership on 19 April 1998.

On 21 May 1998 the Košice Regional Court upheld the District Court’s judgment of 19 December 1996. The judgment stated that new relevant facts had occurred in that the flat in question had been transferred to another person who had become its owner on 23 February 1998. Reference was made to Section 70 (2) of the Land Registry Act of 1995. Accordingly, the applicant could not claim that she and her former husband had joint tenancy rights in respect of the flat. The Regional Court further noted, with reference to the relevant provisions of the Code of Civil Procedure, that a party was free to put forward new facts or arguments in his or her appeal and that it was bound to decide on the facts of the case as they existed at the moment of the delivery of judgment.

On 14 September 2000 the General Prosecutor’s Office informed the applicant that the Ko šice I District Office had not infringed the law by allowing the person who had acquired the flat in question by exchange to be entered as its owner in the land registry. The letter stated that that person had acquired tenancy rights by virtue of an agreement which she had concluded with the municipality which owned the flat on 22 August 1996. Subsequently, the municipality agreed to sell the flat to the tenant in accordance with the relevant law and an agreement was concluded to that effect. At the moment of the entry in the land registry of the new owner there existed no restrictions on the transfer of the ownership of the flat. In particular, under the law in force the fact that proceedings in the applicant’s above action of 22 July 1996 were pending could not affect the validity of the entry in the land registry. As to the interim measure issued by the Ko šice I District Court on 4 March 1998, the public prosecutor noted that the applicant had expressly requested that the District Office be ordered not to allow the transfer of ownership to be entered in the land registry on 3 March 1998, that is after such an entry had been made.

B. Relevant domestic law

The Code of Civil Procedure

Section 80 (c) gives everyone the right to bring civil proceedings with a view to having the existence of a right or of a legal relation determined provided that it is justified by a pressing legal interest.

Pursuant to Section 154 (1), a court’s judgment shall be based on facts as they exist at the moment of its delivery.

Section 213 (1) provides that an appellate court is not bound by the facts as they were established at first instance.

The Land Registry Act of 1995

Under Section 70 (2), the data entered in the land registry, including information about the rights in respect of the property in question shall be considered trustworthy and binding unless the opposite is shown.

COMPLAINTS

1. The applicant complains that the Ko šice Regional Court judges dealing with the case lacked impartiality in that they were “colleagues“ of her former husband. She further complains that the courts dealing with the case did not establish the relevant facts correctly and that the dismissal of her action was arbitrary. She alleges a violation of Article 6 § 1 of the Convention.

2. The applicant complains under Article 13 of the Convention that no appeal was available to her against the Košice Regional Court’s judgment of 21 May 1998.

3. Under Article 8 of the Convention the applicant complains that the Slovakian authorities refused to acknowledge that she had obtained tenancy rights in respect of the flat in question.

4. The applicant alleges a violation of Article 5 of Protocol No. 7 in that she was not granted the right to use the flat in which she had lived together with her former husband and that the latter was not ordered to provide accommodation for her and their child.

THE LAW

1. The applicant complains that the Ko šice Regional Court judges dealing with the case lacked impartiality in that they were “colleagues“ of her former husband. She further complains that the courts dealing with the case did not establish the relevant facts correctly and that the dismissal of her action was arbitrary. She alleges 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 ... by an ... impartial tribunal established by law.”

a) To the extent that the applicant complains that the Ko šice Regional Court judges lacked impartiality , the Court recalls that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to the principles laid down in the Court’s case-law, namely according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Wettstein v. Switzerland , no. 33958/96, § 42, ECHR 2000-XII).

Under the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see the Bulut v. Austria judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, p. 356, § 32 and the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, § 26). As to the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his or her impartiality (see the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, § 30).

In the present case the applicant objected, in particular, that her former husband, who was a public prosecutor at the Ko šice Regional Prosecutor ’s Office, knew all Regional Court judges in Ko šice and had friendly relations with several of them. The applicant further argued that Regional Court judge C. was on friendly terms with her former husband’s mother as she had been a hierarchical superior of the judge’s wife.

In its decision of 30 March 1998 the Supreme Court found that there was no indication that the applicant’s former husband had personal contacts with the judges to whom the case fell to be examined. Furthermore, it was not shown that judge C. had regular contacts with the mother of the applicant’s former husband. The Supreme Court considered irrelevant the fact that the applicant’s mother-in-law had previously been a hierarchical superior of the wife of judge C.

The Court finds no reason to reach a different conclusion. In particular, the documents and information available do not indicate that the Regional Court judges involved had any preconceived ideas or personal convictions about the case.

As to the applicant’s argument that the judges decided against her because they were “colleagues” of her former husband, the Court notes that the applicant’s former husband was a public prosecutor. As such he did not belong to the judiciary. The fact that the applicant’s former husband may have acted as a public prosecutor in different proceedings before the Košice Regional Court does not objectively justify the applicant’s fear that the judges lacked impartiality.

Accordingly, it has not established that the judges were subjectively or objectively biased in deciding the case against the applicant.

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) The applicant further complains that the courts dealing with the case did not establish the relevant facts correctly and that the dismissal of her action was arbitrary.

The Court notes that in its judgment of 21 May 1998 the Košice Regional Court pointed out that new relevant facts had occurred after the delivery of the District Court’s judgment of 19 December 1996 in that the flat in question had been transferred to another person who had become its owner on 23 February 1998. As the Regional Court was bound under the relevant law to decide on the basis of the facts as they existed at the moment of the delivery of the judgment, its conclusion that the applicant’s above claim filed against her former husband had become devoid of object does not appear arbitrary. Furthermore, there is no indication that the proceedings leading to this conclusion were unfair or otherwise 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.

2. The applicant complains that no appeal was available to her against the Košice Regional Court’s judgment of 21 May 1998. She relies 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 where the Convention right asserted by the individual is a “civil right”, within the meaning of Article 6 § 1, the safeguards of that provision, implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, inter alia , the Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2957, § 41 and Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000-XI).

Therefore, and having regards to its earlier conclusion on the applicant’s complaint about the alleged unfairness of the proceedings, the Court finds this complaint manifestly ill-founded and rejects it, in accordance with Article 35 §§ 3 and 4.

3. The applicant complains that the Slovakian authorities refused to acknowledge that she had obtained tenancy rights in respect of the flat in question. She relies on Article 8 of the Convention the relevant part of which provides as follows:

“1. Everyone has the right to respect for his ... home ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court notes that in her action of 22 July 1996 the applicant claimed that the joint tenancy rights in respect of the flat in which she lived together with her former husband be dissolved and that she be declared the exclusive tenant. In the course of the proceedings the position in the matter changed in that the applicant was prevented from living in the flat and the municipality which owned it transferred the tenancy to another person. The transfer was preceded by an exchange of flats between the applicant’s father-in-law, whom the municipality considered to be the tenant of the flat in question, and another person.

The scope of the proceedings complained of was defined by the applicant in her action of 22 July 1996 which was directed against the applicant’s former husband. When deciding on the applicant’s claim the Regional Court was bound by the relevant facts as they existed at the moment of the delivery of its judgment. The Court has found above that the dismissal of the action on the ground that the joint tenancy which the applicant claimed to have together with her former husband could no longer be dissolved, as a different person had become the owner of the flat, was not arbitrary.

The Court further notes that the applicant learned about the exchange of the flat and the transfer of the tenancy rights from her father-in-law to another person on 21 September 1996. The documents submitted indicate that the applicant was also aware that the new tenant intended to purchase the flat in accordance with the relevant legislation.

Thus the applicant knew that neither she nor her former husband were formally considered as tenants of the flat by the municipality which owned it. In those circumstances, it was open to the applicant, in accordance with Section 80 (c) of the Code of Civil Procedure, to seek the protection of her rights in respect of the flat by means of an action against the municipality which owned the flat and the tenant who had later purchased it. In particular, the applicant could have requested the domestic courts to determine that she had tenancy rights in respect of the flat and that the tenancy agreement and, subsequently, the purchase contract concluded between the municipality and the person concerned be declared null and void. As she did not avail herself of this possibility, the applicant did not exhaust 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.

4. Finally, the applicant complains that she was not granted the right to use the flat in which she had lived together with her former husband and that the latter was not ordered to provide accommodation for her and the child born out of their wedlock. She alleges a violation of Article 5 of Protocol No. 7 which provides as follows:

“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”

a) In its judgment of 21 May 1998 the Košice Regional Court held that it could not decide on the applicant’s claim that joint tenancy between her and her former husband be dissolved as the flat in question had been sold to another person in accordance with the relevant law in the meantime. By this finding the Regional Court did not, in the Court’s view, infringe the equality of rights between the applicant and her former husband guaranteed by Article 5 of Protocol No. 7.

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)  The applicant has not shown that in the proceedings before the domestic courts she claimed that her former husband was under obligation to provide accommodation for her and the child born out of the wedlock.

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

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President