FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40290/98 by Ondrej KAČMÁR against Slovakia

The European Court of Human Rights, sitting on 1 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 Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 10 January 1998 and registered on 17 March 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ondrej Kačmár, is a Slovakian national, who was born in 1944 and lives in Prešov . He was represented before the Court by Mr Š. Hegedüš, a lawyer practising in Bratislava. The respondent Government were represented by Mr P. Vršanský, their Agent.

A. The circumstances of the case

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

The applicant ran his business in a house owned by Kovospracujúci podnik, a State owned company with registered office in Prešov. On 6 June 1991 the applicant claimed that the relevant provisions of the State Property Transfer Act of 1990 (Zákon o prevodoch vlastníctva štátu k niektorým veciam na iné právnicke alebo fyzické osoby) entitled him to purchase the part of the house which he leased.

On 16 July 1991 the Regional Arbitration Court (Krajská štátna arbitráž) in Košice found that Kovospracujúci podnik was obliged to conclude a purchase contract with the applicant within ten days after its decision had become final. The decision acquired final binding effect on 8 August 1991.

On 9 October 1991 the applicant concluded a purchase contract with Kovospracujúci podnik and paid the purchase price. Subsequently Kovospracujúci podnik was put into liquidation.

On 31 January 1995 the Prešov District Court declared the contract void ex tunc at the initiative of the Pre šov District Prosecutor. The District Court found that the parties had not explicitly agreed on the date of transfer of the ownership as required by the relevant law and that the lawyer of Kovospracujúci podnik had exceeded his power in that he had included in the contract also premises which had not been leased by the applicant.

On 20 December 1995 the Košice Regional Court upheld the District Court’s judgment. The Regional Court found that the contract did not specify the property in question with sufficient certainty and that this resulted in conflicts between the applicant and another person who had purchased the remaining part of the house from Kovospracujúci podnik.

On 19 December 1995 the applicant requested the Prešov District Court to enforce the decision delivered by the Regional Arbitration Court in Košice on 16 July 1991. He relied on Article III (7) (a) of Act No. 519/1991.

In December 1995 and in March 1996 the applicant submitted a new draft purchase contract for signature to the liquidator of Kovospracujúci podnik. On 22 April 1996 the applicant was requested to submit a supplement to the draft contract as well as an expert opinion.

On 9 April 1996 the person who had purchased the other part of the house in question claimed that the joint ownership of the house be dissolved and that the share owned by Kovospracujúci podnik be transferred to his ownership.

On 22 April 1996 the Prešov District Court granted the claim with reference to Article 142 (1) of the Civil Code and ordered the plaintiff to pay 188,496.61 Slovakian korunas to Kovospracujúci podnik. The liquidator of the latter did not appeal and the judgment became final on 2 May 1996. It was not served on the applicant as he was not a party to the proceedings.

On 23 May 1997 the applicant complained about a violation of his property rights to the Constitutional Court. On 1 July 1997 the latter rejected the petition for lack of jurisdiction.

On 21 May 1996 the applicant requested the Minister of Justice to lodge an appeal on points of law against the Pre šov District Court ’s judgment of 22 April 1996. On 2 October 1996 the Ministry of Justice dismissed the applicant’s request as being manifestly ill-founded.

On 26 May 1997 the applicant requested the Prešov District Court to consider the new owner of the house as defendant in the enforcement proceedings brought on 19 December 1995.

On 6 November 1997 the Prešov District Court dismissed both the applicant’s request for the change of defendants and for enforcement of the Košice Regional Arbitration Court’s decision of 16 July 1991. On 18 December 1997 the Prešov Regional Court upheld these decisions. The courts found that the Košice Regional Arbitration Court’s decision of 16 July 1991 represented a declaration of will of Kovospracujúci podnik within the meaning of Article 161 (3) of the Code of Civil Procedure, and that it could not be enforced pursuant to Article 351 of the Code of Civil Procedure.

In 1998 the applicant was obliged to move his business out of the premises in question.

B. Relevant domestic law and practice

The Civil Code

Pursuant to Article 142 (1), courts may terminate co-ownership of property at the request of one of the co-owners. When it is not practicable to divide the property, its ownership shall be transferred to one or several co-owners for appropriate compensation. Practical use of the property should be borne in mind.

Article 142 (2) provides, inter alia , that courts shall not dissolve co-ownership when this is justified by the particular circumstances of the case.

Under Article 142 (3), the termination of co-ownership cannot be detrimental to persons possessing rights attached to the real property concerned.

The Code of Civil Procedure

Article 161 (1) and (2) provides that a judgment is enforceable after the expiry of the time-limit set for complying with the obligation imposed by it or, when it does not impose an obligation, after it becomes final.

Under Article 161 (3), final judgments ordering a party to make a declaration of will have the effect of such a declaration.

Article 351 (1) provides that courts may, in the context of enforcement proceedings, fine parties who fail to comply with obligations imposed by a decision which is to be enforced.

Pursuant to Article 351 (2), the payment of a fine under the first paragraph of Article 351 does not exempt the party concerned from liability for damage.

Under Article 351 (3), courts shall allow the party concerned to take steps with a view to restoring the previously existing conditions at the cost of the other party when the latter fails to comply with the obligation imposed by the decision to be enforced and thereby brings about a change in the situation. Courts may take appropriate measures with a view to assisting the party concerned in having the original situation restored.

Act No. 519/1991

Act No. 519/1991 of 18 December 1991 amends the Code of Civil Procedure. Article III (7) (a) provides that the enforceability of arbitration courts’ decisions shall be confirmed by the competent Regional Court provided that the rights in question still exist.

The relevant practice

In accordance with the Supreme Court’s case-law, judgments imposing an obligation to conclude a purchase contract replace the vendor’s declaration of will to conclude such a contract. There is, therefore, no reason for applying Article 351 of the Code of Civil Procedure in proceedings concerning the enforcement of such judgments (Collection of opinions, conclusions, analyses and assessments of the judicial practice, No. IV, p. 796).

COMPLAINTS

The applicant complains under Articles 6 § 1 and 13 of the Convention that his request for enforcement of the Košice Regional Arbitration Court’s decision of 16 July 1991 was not granted and that he could not defend his rights in the proceedings leading to the termination of co-ownership of the house one part of which he was entitled to purchase.

The applicant also alleges a violation of Article 1 of Protocol No. 1 in that he was prevented from acquiring the ownership of real property to which he was entitled both under the State Property Transfer Act of 1990 and pursuant to the Košice Regional Arbitration Court’s decision of 16 July 1991.

THE LAW

1. The applicant complains that his request for enforcement of the Košice Regional Arbitration Court’s decision of 16 July 1991 was not granted and that he could not defend his rights in the proceedings leading to the termination of co-ownership of the house one part of which he was entitled to purchase. He alleges a violation of Articles 6 § 1 and 13 of the Convention which, so far as relevant, provide as follows:

Article  6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 13

“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 Government argue that when concluding the purchase contract of 9 October 1991 the applicant brought about the situation of which he now complains before the Court by his negligence . They maintain that the applicant’s right to a hearing by a tribunal was not violated and that the applicant has been free to claim the restitution of the sum which he paid to Kovospracuj úci podnik.

The applicant contends that he did not have an effective access to a court with a view to having his right to purchase the real property in question determined in that, under Slovakian law, he was not a party to the proceedings concerning the dissolution of the co-ownership of the real property in question. He further argues that those proceedings should have been stayed pending the outcome of the proceedings concerning his claim for the enforcement of the Ko šice Regional Arbitration Court’s decison of 16 July 1991.

The Court has noted that the Košice Regional Arbitration Court’s decision under which Kovospracuj úci podnik was obliged to conclude a purchase contract with the applicant was delivered on 16 July 1991 and that such a contract was concluded on 9 October 1991, that is prior to 18 March 1992 when the Convention entered into force with respect to the former Czech and Slovak Federal Republic of which the Slovak Republic is one of the successor states. However, after the above contract was declared void in 1995, the applicant sought both to have a new valid purchase contract concluded on the basis of the Košice Regional Arbitration Court’s decision of 16 July 1991 and to have that decision enforced. Since the applicant complains that he was not able to obtain redress in this respect during a period which is subsequent to 18 March 1992, the Court finds that the facts complained of fall within its jurisdiction ratione temporis .

The Court further considers, in the light of the parties’ submissions, that the complaints raise 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 part of  the application 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 applicant also complains that he was prevented from acquiring the ownership of real property to which he was entitled both under the State Property Transfer Act of 1990 and pursuant to the Košice Regional Arbitration Court’s decision of 16 July 1991. He alleges a violation of 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 point out that the purchase contract between the applicant and Kovospracuj ú ci podnik was declared void ex tunc and conclude that there has been no interference with the applicant’s rights under Article 1 of Protocol No. 1.

The applicant argues that the Košice Regional Arbitration Court’s decision of 16 July 1991 entitled to him to purchase the real property in question. In his view, the representatives of Kovospracuj úci podnik prevented him from acquiring the property in that they disregarded his proposals that a new purchase contract be concluded and that they agreed, in the context of the proceedings concerning the dissolution of joint ownership, that the relevant part of the house be transferred to another individual.

The Court considers, in the light of the parties’ submissions and of its above conclusion concerning its jurisdiction ratione temporis to examine the facts of the case, 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.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President