SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37884/97

by Jozef BONDA

against Slovakia

The European Court of Human Rights (Second Section) sitting on 25 May 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 30 June 1997 by Jozef BONDA  against Slovakia and registered on 23 September 1997 under file no. 37884/97;

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 1927 and living in Bratislava.

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

A. Particular circumstances of the case

The applicant, his wife and his son co-owned, together with six other individuals, a land in Stupava which they had jointly purchased in 1983. The four families co-owning the property built cottages on the land and reached an agreement as regards its use. In 1987 two co-owners requested that they should be authorised to accede to their cottage by a car across the plot used by the applicant and his family. An agreement was not reached and the two co-owners brought proceedings with a view to having the co-ownership dissolved.

On 28 June 1988 the Bratislava- vidiek District Court ( Okresný súd ) dissolved the co-ownership and determined the owners of the individual plots forming the estate. It considered such a solution necessary in order to ensure a peaceful enjoyment of the property by all persons involved and also in order to enable the claimants to accede to the plot attributed to them.

On 4 January 1989 the Bratislava Regional Court ( Krajský súd ) modified the first instance judgment in that it re-distributed the property with a view to ensuring all owners a direct access to their plots. Since the shares of the former co-owners could not be entirely respected, the persons concerned were granted a compensation.

On 27 June 1990 the Supreme Court ( Najvyšší súd ) quashed the judgment as the facts had not been established with sufficient certainty. In particular, the Supreme Court considered that the Regional Court should have explored in more detail the possibility of dividing the property in accordance with the co-owners’ shares.

The case was sent back to the Regional Court. On 30 August 1993 an expert appointed by the latter submitted his opinion on the division of the land. Another expert opinion concerning different issues was submitted on 13 July 1994.

At a hearing held on 12 October 1994 the applicant requested an adjournment of the case as he had not been given an opportunity, despite his two requests to this effect, to examine the case-file. The applicant further challenged the two expert opinions. As regards the opinion of 30 August 1993, the applicant alleged that the data used by the expert were not correct, that the expert had not taken into account all the relevant facts and that the claimants’ request for access to their plot with a car was not justified. The applicant suggested that the Regional Court should order a second expert opinion on these issues.

The court scheduled another hearing for 21 October 1994 so that the applicant could study the case-file on 13 and 14 October 1994.

On 14 and 19 October 1994 the applicant challenged the presiding judge of the Regional Court. The applicant considered that the judge lacked independence and impartiality as he disregarded the opinion expressed in the Supreme Court’s judgment of 27 June 1990 and since he envisaged to accept the expert opinion of 30 August 1993 which was based on false facts. He also complained that the judge was not willing to order a second expert opinion.

On 25 October 1994 the Supreme Court dismissed the applicant’s request. It considered that a mere objection to the way in which the judge proceeded with the case was not a relevant reason for his exclusion. The Supreme Court noted that the applicant had not substantiated his allegation that the judge was biased. It qualified the applicant’s request as an attempt to interfere with the court’s independence in deciding on the case.

The Supreme Court’s decision was signed by a judge and stated that it was adopted in accordance with Section 16 (1) of the Code of Civil Procedure (see “Relevant domestic law and practice” below). On 13 December 1994 the president of the civil law section of the Supreme Court informed the applicant that the decision of 25 October 1994 had been taken by chamber no. 3Cdo and not by a single judge as alleged by the applicant.

Another hearing before the Regional Court was scheduled for 14 December 1994. The applicant requested that the proceedings be adjourned. He alleged that the case was not ready for adjudication, that the Supreme Court’s decision of 25 October 1994 had not been taken by a chamber as required by Section 16 (1) of the Code of Civil Procedure and that his request of 8 December 1994 to be allowed to consult the case-file had not been granted.

On 14 December 1994 the Regional Court upheld the Bratislava- vidiek District Court’s decision of 28 June 1988 to dissolve the co-ownership of the land and redistributed the ownership of the individual plots so that the claimants could directly accede to their plot. It referred to the conflicts between the claimants and the applicant’s family on this issue and held that such a solution conformed to Section 142 (1) of the Civil Code.

When determining the shares of the owners the Regional Court noted that it was bound by the purchase contract of 17 January 1983 which had been duly registered by a State Notary. According to the contract, the claimant family and the applicant’s family had a title to one third of the property each. For practical reasons, the plot attributed to the members of the claimant family exceeded by 10 square meters their original share and the plot attributed to the members of the applicant’s family exceeded their share by 8 square meters. Both families were therefore ordered to pay a compensation to the other owners who were in agreement. The court further ordered the claimants to pay Slovak korunas (SKK) 9,290 to the applicant’s family as a compensation for a fence and other investments which they had made on the land. The amount of the compensation had been determined by an expert.

The judgment was based on the expert opinion including a geometric plan submitted on 20 August 1993. The Regional Court noted that the opinion conformed to the relevant regulations. The court also referred to its two inspections of the site of 8 November 1988 and 31 March 1992 respectively.

On 2 May 1995 the applicant complained to the president of the Regional Court that the judgment of 14 December 1994 had not been served on him. He alleged a violation of Section 158 (3) of the Code of Civil Procedure. On 6 May 1995 the president of the Regional Court informed the applicant that he had extended the time-limit for drafting the judgment with reasons until the end of May 1995 as the judge originally charged with this task was on a long-term sick leave. The judgment was served on the applicant on 9 May 1995.

On 4 July 1995 the applicant lodged an appeal on points of law with the Supreme Court. He alleged that the Regional Court had not established the facts correctly and that it had decided arbitrarily. In his view, the Regional Court had disregarded a mistake committed by the State Notary when registering the co-owners’ shares on 21 Feburary 1983. The applicant also complained that the expert opinion of 30 August 1993 had been based on false facts, that his request for a second expert opinion had not been granted and that there existed no relevant reasons for granting the claimants access to their plot by a car.

The applicant further alleged that prior to the hearing held on 14 December 1994 the Regional Court had not allowed him to consult the case-file, that his son had not been duly summoned and that the Regional Court’s judgment had been served belatedly. He complained that he had suffered a damage of SKK 59,368 which the Regional Court had not taken into consideration.

The Supreme Court dismissed the appeal on points of law on 20 February 1997. It found that the Regional Court had proceeded in accordance with Section 142 (1) of the Civil Code and that the reasons for its judgment were relevant and sufficient. The Supreme Court noted that the co-owners’ shares had been duly registered by the State Notary in 1983 and found nothing to show that the expert opinion of 30 August 1983 did not conform to the law or was otherwise defective. The failure to order a second expert opinion was not contrary to the applicant’s right to act before the court.

The Supreme Court further established that the damages granted to the applicant’s family had been determined by an expert and that the applicant’s complaint about further damage of SKK 59,368 had not been the subject-matter of the proceedings in question. Finally, the Supreme Court found that the applicant had consulted the file several times and considered it irrelevant that he could not accede to it prior to the hearing held on 14 December 1994.

The applicant lodged a constitutional petition ( podnet ) in which he alleged a violation of his constitutional right to judicial protection. It was rejected on 8 October 1997. The Constitutional Court found that the applicant’s right to have his case examined by a court was respected.

B. Relevant domestic law and practice

Civil Code

Section 142 (1) gives a court the right to dissolve, at the request of one of the co-owners, a joint ownership and to determine the rights of the persons concerned if the latter fail to reach an agreement on this issue. In doing so, the court shall consider the co-owners’ shares in the property and bear in mind that its use should be effective.             

Code of Civil Procedure

Pursuant to Section 16 (1), the decision on a request for exclusion of a judge shall be taken by a chamber of the higher court.

In accordance with Section 44 (1), parties to the proceeding and their representative have the right to consult the case-file with the exception of the records of votes.

Section 127 (1) provides that a court shall appoint an expert after having heard the parties if its decision in a case depends on the assessment of facts requiring special knowledge. Pursuant to Section 127 (2), an expert opinion may be submitted for examination to another expert, a scientific institute or another institution.

In accordance with the relevant case-law (Collection of the judicial decisions and opinions No. 1/1981), experts may also prepare opinions after an agreement with natural or legal persons. The interested persons may then submit such opinions to the courts which should consider them as a documentary evidence.

Under Section 158 (3), a copy of the judgment with reasons should be dispatched within thirty days after its delivery. The court’s president may grant a derogation from this rule provided that it is justified by serious reasons.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the courts dealing with his case failed to establish the facts correctly and decided arbitrarily. In particular, he alleges that there was no relevant reason for granting the claimants a plot permitting them to accede to their cottage with a car, that the expert opinion of 30 August 1993 was erroneous and contrary to the law and that his request for a second expert opinion was not granted.

The applicant further considers his rights under Article 6 § 1 of the Convention violated in that ( i ) the Regional Court did not allow him to consult the case-file prior to the hearing held on 14 December 1994, (ii) his son was not duly summoned to that hearing, (iii) the Regional Court’s judgment of 14 December 1994 was served on him belatedly, (iv) the Supreme Court’s decision on his request for exclusion of a judge was not taken by a chamber as required by Section 16 (1) of the Code of Civil Procedure.

Under Article 1 of Protocol No. 1 the applicant complains that he suffered a damage amounting to SKK 59,368 due to the re-distribution of the plots and to the claimants’ acts interfering with his property.

THE LAW

1. The applicant complains that his right to a fair hearing was not respected. He alleges 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 ... hearing ... by an ... impartial tribunal...”

To the extent that the applicant complains that the courts failed to establish the facts correctly and decided arbitrarily, the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, to be published in Reports of Judgments and Decisions 1999 ).

In the present case the Regional Court dissolved the co-ownership of the land and determined the ownership of the individual plots with a view to permitting the claimants to directly accede to their plot by a car. It based its decision on an expert opinion and considered such a solution conform to Section 142 (1) of the Civil Code as there existed conflicts between the claimants and the applicant’s family. Subsequently the Supreme Court found that the Regional Court had correctly established the facts and that its decision was in accordance with the law.

The Court considers that the reasons on which the national courts based their decisions are sufficient to exclude the assumption that the way in which they established and evaluated the evidence in the applicant’s case was unfair or arbitrary.

As to the applicant’s complaint about the expert opinion of 30 August 1993 and about the refusal to order a second expert opinion, the Court recalls that Article 6 § 1 of the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Garcia Ruiz v. Spain judgment cited above, § 28). Furthermore, the Court notes that Slovak law, as interpreted and applied by the domestic courts, permitted the applicant to submit other expert opinions in support of his allegations which the courts would have to consider as documentary evidence. However, he did not avail himself of this opportunity.

The applicant also complains that he was not allowed to consult the case-file prior to the hearing before the Regional Court held on 14 December 1994. The Court notes that on 12 October 1994 the Regional Court adjourned the case at the applicant’s request so that he could study the file. The applicant did so on 13 and 14 October 1994. Subsequently the Supreme Court dismissed the applicant’s request for exclusion of the Regional Court’s judge and on 14 December 1994 the Regional Court decided on the case without having granted the applicant’s new request for access to the file of 8 December 1994.

The Court has before it no information which would permit it to conclude that by refusing the applicant a second consultation of the file within a relatively short span of time the Regional Court disregarded the principle of “equality of arms” enshrined in Article 6 § 1 or that this refusal otherwise affected the applicant’s right to a fair hearing.

The Court further considers that by failing to duly summon the applicant’s son to a hearing the Regional Court in no way interfered with the applicant’s rights under Article 6 § 1 of the Convention.

The Court further finds irrelevant from the point of view of the applicant’s right to a fair hearing that the Regional Court’s judgment of 14 December 1994 was served belatedly in terms of domestic law. The applicant does not complain about the length of the proceedings and the Court does not consider it necessary to examine this issue of its own initiative.

Finally, the applicant complains that the Supreme Court’s decision on his request for exclusion of a Regional Court’s judge was not taken by a chamber as required by Section 16 (1) of the Code of Civil Procedure.

The Court notes that the Supreme Court’s decision of 25 October 1994 expressly stated that it had been adopted in accordance with Section 16 (1) of the Code of Civil Procedure. On 13 December 1994 the president of the civil law section of the Supreme Court confirmed this fact to the applicant. In the Court’s view, the failure to mention in the relevant decision the names of the other judges deciding on the applicant’s request did not infringe the applicant’s rights under Article 6. The applicant did not make out his complaint about the lack of impartiality of the judge concerned before the Supreme Court, and the Court has before it no information which would permit it to reach a different conclusion on this issue.

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

2. The applicant further complains that he suffered a damage amounting to 59,368 SKK due to the re-distribution of the plots and to the claimants’ acts interfering with his property.  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.”

Assuming that the contested decision amounted to an interference with the applicant’s right under Article 1 of Protocol No. 1, the Court’s task is to supervise its lawfulness, purpose and proportionality (see, e.g., the Spadea and Scalabrino v. Italy judgment of 28 September 1995, Series A no. 315-B, pp. 25-27, §§ 29-40).

The domestic courts determined the ownership of the land in question pursuant to Section 142 (1) of the Civil Code so that the claimants could directly accede to their plot. The courts referred to conflicts existing between the claimants and the applicant’s family and found that such a solution was necessary in order to ensure an effective use of the property by all owners. Accordingly, the impugned measures were in accordance with Slovak law and they were in the general interest of protecting the rights of others.

On the question of the proportionality of the alleged interference with the applicant’s rights, the Court notes that the applicant and the other members of his family were attributed the ownership of a land the surface of which slightly exceeded their share in the original co-property. They were further granted, in accordance with the finding of an expert, a compensation of SKK 9,290 for their investments on the part of the land which was attributed to the other co-owners.

Having regard to the foregoing and to the margin of appreciation enjoyed by the domestic authorities in this area (see, e.g., the Agosi v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 18, § 52), the Court is of the opinion that the decision in question was compatible with the applicant’s right to the peaceful enjoyment of his possessions.

The documents before the Court indicate that the domestic courts were not called upon to entertain the applicant’s claim for further damages of SKK 59,368 as it was not the subject-matter of the proceedings complained of. Furthermore, the applicant does not allege that he has been prevented from claiming the outstanding damages in separate proceedings.

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

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis Registrar President