SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38798/97

by Marcela BÁNOŠOVÁ

against Slovakia

The European Court of Human Rights (Second Section) sitting on 24 August 1999 as a Chamber composed of

Mr C. Rozakis , President ,

Mr M. Fischbach ,

Mr G. Bonello ,

Mrs V. Strážnická ,

Mr P. Lorenzen ,

Mr A.B. Baka ,

Mr E. Levits , Judges ,

with Mr E. Fribergh, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 July 1997 by Marcela Bánošová against Slovakia and registered on 27 November 1997 under file no. 38798/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak national, born in 1932 and living in Banská Bystrica .

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

On 1 March 1990 proceedings were brought before the Banská Bystrica District Court ( Okresný súd - “the District Court“) with a view to determining the estate of the applicant’s late father.

On 6 December 1991 the State Notary appointed by the District Court made an inventory of the estate.

On 10 March 1992 the Banská Bystrica Regional Court ( Krajský súd - “the Regional Court“) dismissed the applicant’s appeal against the District Court‘s decision not to include a car in the estate.

On 15 April 1992 the court’s clerk secured the movables by sealing the flat of the applicant’s father. On 7 September 1992 the Regional Court upheld this decision.

On 26 February 1993 and on 31 July 1995 a bank informed the applicant that she could only accede to savings deposited at an account she had jointly opened with her father after the determination of the latter’s estate or, as the case might be, subject to an interim order by a court.

Another person claimed a share in the estate on the ground that she was the daughter of the applicant’s late father. As this was contested by the applicant, the court’s clerk instructed the applicant, on 13 April 1993, to bring separate proceedings with a view to determining this issue.

On 14 May 1993 the applicant lodged an action with the District Court and claimed, in accordance with the instruction of the court’s clerk, that the defendant was not entitled to a share in the estate. The defendant lodged a counter-action and claimed the opposite.

On 3 October 1994 the District Court dismissed the applicant’s action on the ground that she had no urging legal interest in bringing it. It further granted the defendant’s claim that she had a right to succeed to the estate. In its judgment the District Court pointed out that the defendant was under the obligation to bring separate paternity proceedings failing which its judgment could not become effective.

The applicant appealed on 28 December 1994.

On 16 March 1995 the Regional Court upheld the District Court’s decision to dismiss the applicant’s action and dismissed the defendant’s counter-action. The Regional Court found the above instruction of the District Court’s clerk of 13 April 1993 unlawful. It recalled that under the relevant law the courts were first obliged to determine the factual issues of the case, i.e. whether the defendant was a next of kin in this particular case, and only then decide on questions of law.

On 6 November 1995 the applicant refused to recognise as her sister the other person claiming a share in the estate.

On 21 June 1996 the applicant complained to the president of the Regional Court about delays in the proceedings concerning the estate and requested the appointment of another clerk. Her complaint was submitted to the president of the District Court.

On 18 July 1996 the president of the District Court informed the applicant that the proceedings concerning the estate had been stayed and that the other person claiming to be a daughter of the applicant’s late father had been invited to lodge an action with a view to having this issue determined by a court.

Such an action was lodged and the applicant was summoned to a hearing before the District Court scheduled for 11 July 1997. The hearing was adjourned as the applicant’s lawyer was not available.

Another hearing before the District Court was held on 5 December 1997. The lawyer appointed by the District Court to represent the applicant’s late father failed to appear. The hearing was adjourned.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the length and unfairness of the judicial proceedings concerning her father’s estate.

The applicant further alleges a violation of Article 8 of the Convention and of Article 1 of Protocol No. 1 in that her claim to include a car in the estate was not granted, that she cannot use the savings she had jointly owned with her father and that she has not been granted the latter’s estate.

THE LAW

1. The applicant complains about the dismissal of her claim to include a car in her father’s estate and that a bank does not allow her to use savings deposited on an account which she had jointly owned with her father. She alleges a violation of Article 8 of the Convention and a violation of Article 1 of Protocol No. 1.

a) To the extent that the applicant complains about the dismissal of her claim to include a car in the estate, the Court notes that the final decision on this claim was delivered by the Banská Bystrica Regional Court on 10 March 1992, i.e. 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, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party.

It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

b) The applicant further complains that a bank does not allow her to use the savings she had jointly owned with her father.

The documents before the Court do not indicate that the applicant claimed her right to use the savings or a part thereof prior to the determination of her father’s estate before the courts. In this respect she has not, therefore, exhausted the domestic remedies as required by Article 35 § 1 of the Convention.

It follows that this part of the application must be rejected under Article 35 § 4 of the Convention.

2. Finally, the applicant complains that the proceedings concerning her father’s estate have been unfair and that they have lasted unreasonably long. She alleges a violation of Article 6 § 1 of the Convention which reads, so far as relevant, as follows:

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

a) Since the proceedings concerning the estate are still pending, the applicant’s complaint about their unfairness is premature.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

b) As to the complaint about the length of the proceedings concerning the estate of the applicant’s father, the Court considers that it cannot, on the basis of the file, determine its admissibility. 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.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaint about the length of the proceedings concerning her father’s estate;

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis

Registrar President