FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44925/98 by Nadina VALOVÁ and Others against Slovakia

The European Court of Human Rights, sitting on 23 April 2002 as a Chamber composed of

Sir Nicolas Bratza , President ,

Mr M. Pellonpää Mrs E. Palm , Mr J. Makarczyk , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 9 November 1998 and registered on 10 December 1998,

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, Mrs Nadina Valová, Mr Vít Slezák and Mr Askold Slezák, are Slovakian nationals born in 1939, 1940 and 1948 respectively. The first applicant, Mrs N. Valová, lives in Modra. The other two applicants live in Cífer. They were represented before the Court by Mr J. Havlát, 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.

On 10 February 1992 the Topoľčany Land Office (Pozemkový úrad) delivered two decisions granting the applicants’ claims for restitution of real property under the Land Ownership Act (see “Relevant domestic law” below). The defendants appealed.

On 16 December 1993 the Nitra branch office of the Bratislava Regional Court (Krajský súd Bratislava, pobočka v Nitre) quashed these decisions on the ground that at the moment of the expropriation the land in question had been formally owned by a private company established by the members of the applicants’ family. However, the Land Ownership Act provided exclusively for restitution of property taken away from individuals. The Regional Court therefore sent the case back to the administrative authority. Prior to deciding on the case the Regional Court held a hearing with reference to Section 250q of the Code of Civil Procedure.

In the meantime, on 13 November 1992, the applicants concluded an agreement with the Western Slovakia Forest Administration in which the latter undertook to restore, in accordance with the Land Ownership Act, different real property expropriated from their family. On 26 November 1992 the Topoľčany Land Office approved the agreement pursuant to Section 9 of the Land Ownership Act. Its decision became final on 18 December 1992.

On 17 June 1994 the Topoľčany Land Office decided to reopen the proceedings leading to its decision of 26 November 1992 pursuant to Section 62 (1) (a) and (b) of the Administrative Proceedings Act. The decision referred to the above finding of the Nitra branch office of the Bratislava Regional Court of 16 December 1993 according to which the land taken away from the applicants’ relatives could not be restored under the Land Ownership Act as it had been formally owned by a legal entity.

On 22 May 1995 the Ministry of Agriculture upheld the Land Office’s decision on reopening of the proceedings. It dismissed the applicants’ objection that the reopening of the proceedings was contrary to the law. On 29 September 1995 the Supreme Court (Najvyšší súd) discontinued the proceedings concerning this issue with reference to Section 248 (2) (e) of the Code of Civil Procedure.

By a decision of 8 June 1995 the Topoľčany Land Office disapproved the agreement concluded between the applicants and the Western Slovakia Forest Administration on 13 November 1992 on the ground that the property in question had been taken away from a legal person and that under the Land Ownership Act only property originally owned by individuals could be restored.

The applicants appealed and argued that there existed no reason for reopening the proceedings and that the land had been taken away from the members of their family.

On 30 January 1998 the Nitra Regional Court upheld the Land Office’s decision of 8 June 1995. In the Regional Court’s view, the only point to be determined was whether or not the private company of which the applicants ’ predecessors were members and from which the land in question had been confiscated was a legal person. The court referred to its conclusions on this issue set out in the judgment of 16 December 1993 and found that the applicants lacked standing to claim restitution under the Land Ownership Act.

The Regional Court further noted that a decision on reopening of proceedings before an administrative authority could not be reviewed by a court. It decided on the case without a hearing with reference to Section 250f of the Code of Civil Procedure.

B. Relevant domestic law and practice

The Land Ownership Act

Section 4 of Act No. 229/91 on Adjustment of Ownership Rights to Land And Other Agricultural Property (“the Land Ownership Act”) provides for restitution of real property to individuals from whom it was transferred to State ownership between 25 February 1948 and 1 January 1990 by means specified in Section 6. Where such persons are no longer alive, their successors are entitled to restitution under conditions specified in paragraph 2 of Section 4.

Section 9 (1) provides that a person entitled to restitution must lodge his or her claim with the appropriate land office and at the same time he or she must request restitution from the person or entity possessing the real property at issue. The latter is required to conclude, within sixty days, an agreement on transfer of the property with the claimant.

Under Section 9 (2), such agreements are subject to approval by the competent land office.

The Administrative Proceedings Act

The proceedings before land offices are governed by Act No. 71/1967 on Administrative Proceedings, as amended.

Section 62 (1) (a) provides that administrative proceedings in which a final decision has been taken may be reopened at a party’s request when there are new facts or evidence which could substantially affect the decision and which could not be considered in the original proceedings for reasons that cannot be imputed to the party concerned.

Under Section 62 (1) (b), administrative proceedings in which a final decision has been taken may also be reopened when the decision depended on the examination of a preliminary issue on which the competent authority decided differently.

Section 62 (2) entitles administrative authorities to reopen proceedings for reasons set out in paragraph 1 provided that the review of a final decision is in the general interest.

Pursuant to Section 62 (3), administrative proceedings cannot be reopened when the decision in question entitled a party, inter alia , to exercise civil rights provided that the party concerned acquired the rights in question in good faith.

The Code of Civil Procedure

The lawfulness of certain decisions of administrative bodies can be reviewed by courts in accordance with Part 5 of the Code of Civil Procedure which governs the administrative judiciary.

Under Section 248 (2) (e), administrative authorities’ decisions of, inter alia , a preliminary and procedural nature cannot be reviewed by courts.

Section 250f entitles the courts to deliver a judgment without prior oral hearing in simple cases, in particular when there is no doubt as to whether the administrative authority established the facts correctly, and the point at issue is a question of law. In its finding No. PL .ÚS 14/98 of 22 June 1998 the Constitutional Court found that Section 250f of the Code of Civil Procedure was contrary to the Constitution and also to Article 6 § 1 of the Convention. As a result, this provision ceased to be effective.

Pursuant to Sections 250q and 250r, a court examining an administrative decision can either uphold or quash it. When the decision was not taken pursuant to Section 250(f) or if the administrative authority did not take a new decision satisfying the plaintiff’s claim, the court may take such evidence as it deems necessary. When the court quashes a decision, the case is sent back to the administrative authority. The latter is bound by the legal opinion expressed by the court.

The State Liability Act of 1969

Section 1 of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (“the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia , administrative and civil proceedings.

Pursuant to Section 4 (1), a claim for damages can only be lodged after the decision by which damage was caused was quashed by the competent authority as being unlawful. Such a decision is binding on the court deciding on the claim for damages.

COMPLAINTS

1. The applicants complain under Article 1 of Protocol No. 1 about deprivation of the property which they obtained in accordance with the Topo ľčany Land Office’s decision of 13 November 1992. In particular, they refer to Section 62 (3) of the Administrative Proceedings Act and allege that the decision to reopen the proceedings was unlawful.

2. The applicants further complain that their right to a fair and public hearing by a tribunal was violated in that ( i ) the Nitra Regional Court did not hold a hearing prior to the delivery of its judgment of 30 January 1998, and (ii) that both the Nitra Regional Court and the Supreme Court refused to consider their argument concerning the unlawfulness of the decision to reopen the administrative proceedings concerning their case. They allege a violation of Article 6 § 1 of the Convention.

THE LAW

1. The Government object that the applicants failed to exhaust domestic remedies as they did not claim damages in accordance with the State Liability Act of 1969.

The applicants contend that they could not claim damages under the State Liability Act of 1969 as the decision complained of was not quashed as being unlawful, and that they had no further remedies with a view to having its lawfulness examined.

The Court notes that under Section 4 (1) of the State Liability Act of 1969, compensation for damage may only be granted if the relevant decision was quashed as being unlawful by the competent authority. However, this condition was not met in the applicants’ case. Accordingly, the application cannot be rejected for the applicants’ failure to exhaust domestic remedies.

2. The applicants complain that their right to a fair and public hearing was violated in the proceedings concerning their case. They allege a violation of Article 6 § 1 of the Convention which provides, so far as relevant, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”

a) To the extent that the applicants complain that their right to a public hearing by a tribunal was violated in the proceedings leading to the Nitra Regional Court’s judgment of 30 January 1998, the Government maintain that the Regional Court was entitled to decide on the applicant’s action without a hearing in accordance with Section 250f of the Code of Civil Procedure. They point out, in particular, that there was no doubt that the land office had established the relevant facts correctly. Furthermore, the land office’s decision was based on the prior finding of the Nitra branch Office of the Bratislava Regional Court that the entity from which the property in question had been taken away had been a legal person. The Government point out that the role of an independent and impartial tribunal was fulfilled by the land office and that the Nitra Regional Court acted only as a judicial authority charged with the review of the first instance decision. In the Government’s view, the absence of a hearing in the proceedings before the Nitra Regional Court was compatible with the guarantees of Article 6 § 1 of the Convention in the particular circumstances of the case.

The applicants recall that the Constitutional Court found that Section 250f of the Code of Civil Procedure was contrary to Article 6 § 1 of the Convention and conclude that their right to a public hearing before a tribunal was not respected in the proceedings complained of .

The Court considers, in the light of the parties’ submissions, 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.

b) The applicants complain that their right to a fair hearing by a tribunal was violated in that both the Nitra Regional Court and the Supreme Court refused to consider their argument concerning the unlawfulness of the decision to reopen the administrative proceedings.

The Government submit that the proceedings leading to the decision to reopen the original proceedings concerning the restitution of property did not, as such, directly affect the applicants’ rights. They further maintain that the proceedings were reopened in accordance with Section 62 of the Administrative Proceedings Act.

The applicants submit that the refusal, by the Supreme Court and by the Nitra Regional Court, to determine the lawfulness of the reopening of the proceedings concerning the restitution of their property violated their right to a fair hearing by an independent and impartial tribunal having full jurisdiction to decide on all aspects of the case.

The Court notes that both the Supreme Court and the Nitra Regional Court refused to entertain the applicants’ argument according to which the administrative authorities’ decision to reopen the proceedings was unlawful as, under Section 248 (2) (e) of the Code of Civil Procedure, administrative authorities’ decisions of a preliminary and procedural nature cannot be reviewed by courts.

In the Court’s view, by deciding to reopen the proceedings in question the administrative authorities did not determine the applicants’ civil rights and obligations within the meaning of Article 6 § 1 of the Convention. The fact that in the subsequent proceedings the decision on the restitution of the land in question was quashed cannot affect this position.

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

3. The applicants complain that their property rights were infringed as a result of the decision to disapprove the agreement on restitution of property concluded on 13 November 1992. They allege 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 submit that the proceedings leading to the decision to reopen the original proceedings concerning the restitution of property did not affect, as such, the applicants’ rights. In any event, the proceedings were reopened in accordance with Section 62 of the Administrative Proceedings Act. The subsequent decision by which the applicants were deprived of the property which had been restored to them earlier was in accordance with the law as Section 4 (1) of the Land Ownership Act excluded restitution of property taken away from legal persons.  The Government conclude that the applicants’ rights under Article 1 of Protocol No. 1 were not infringed.

In the applicants’ view, they were deprived of their property as a result of the decision to reopen the proceedings in which the agreement on its restitution had been approved. The interference was contrary to the relevant law, namely Section 62 (3) of the Administrative Proceedings Act as, in particular, it had not been established that they had acquired the property in bad faith as required by that provision. The applicants further contend that the interference with their property rights was not in the general interest and that it was disproportionate.

The Court considers, in the light of the parties’ submissions, 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 admissible, without prejudging the merits, the applicants’ complaints that their rights to a public hearing before a tribunal and to the peaceful enjoyment of their possessions were violated in the proceedings leading to the Nitra Regional Court’s judgment of 30 January 1998 ;

Declares inadmissible the remainder of the application.

Michael O ’Boyle Nicolas Bratza Registrar President