AS TO THE ADMISSIBILITY OF
Application No. 24505/94
by Stefan BEKE
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 19 October 1995, the following members being present:
MM. H. DANELIUS, President
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 October 1993
by Mr. Stefan BEKE against the Slovak Republic and registered on
29 June 1994 under file No. 24505/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Slovak citizen born in 1950. He is an
accountant and resides in Komárno.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The particular circumstances of the case
The applicant was involved in several sets of court proceedings
concerning his divorce and ancillary matters. The proceedings were
held before the Komárno District Court (Okresny súd) at first instance
and the Bratislava Regional Court (Krajsky súd) at second instance.
In three cases the Supreme Court (Najvyssí súd) found the decisions
unlawful and quashed them. The courts then adopted new decisions which
have become final.
On 9 November 1988, pursuant to an order of the Komárno District
Court, items belonging to the applicant were removed from a flat
assigned to his former wife notwithstanding that the applicant had
requested the removal to be postponed on the ground that he was in
hospital. Subsequently the applicant complained that many of his
belongings had been left behind, and that some of the items removed had
been damaged. He refused to collect the items left in the flat as he
considered that the removal had been vitiated by several procedural
irregularities.
On 4 February 1989 the items which had been left in the flat were
placed in the local authority's custody, and the applicant was informed
that he was free to collect them. On 8 January 1990 he was informed
by the Ministry of Justice that the Bratislava Regional Court had been
requested to make the necessary arrangements for return of the items.
It appears from the documents submitted that the applicant later
recovered those items. However, he considers that part of his property
is still in the flat where his former wife lives.
On 26 September 1988 the applicant lodged an action against the
State with the Komárno District Court under Act No. 58/1969 (see below
the relevant domestic law). He completed his submissions to the court
on 7 December 1988 and on 23 October 1992. The applicant claimed
material and non-pecuniary damages resulting from wrong decisions and
procedural defects in proceedings held, between 1984 and 1991, before
the Komárno District Court and the Bratislava Regional Court. The
applicant challenged the Komárno District Court judges for bias (on the
ground that the damage had been caused by this court), and on
29 March 1990 the case was transferred to the Nitra District Court.
The applicant claimed, in particular, that he had suffered damage
since the courts had reached wrong decisions, failed to take the
necessary evidence and to hear the proposed witnesses, relied on false
evidence and had not established the facts properly. He further
claimed damages for misbehaviour of judges, their procedural mistakes
and failure to comply with the Code of Civil Procedure. He proposed
that witnesses (including judges and witnesses from the initial
proceedings) should be heard and evidence taken.
In addition to the aforesaid claim, the applicant also claimed
damages on the ground that the persons who had carried out the Komárno
District Court's order to remove his personal effects had acted
erroneously in that they had committed several procedural mistakes.
He submitted details of the damage which he had suffered.
In 1990 the applicant claimed the damages, on the Nitra District
Court's advice, from the Ministry of Justice pursuant to Section 9 of
Act No. 58/1969. On 5 October 1992 the claim was dismissed, mainly on
the ground that the decisions in question were final and had not been
quashed for unlawfulness. The applicant was informed that he could
claim the damages before a court.
In the proceedings before the Nitra District Court a
representative of the Ministry of Justice denied that the applicant had
suffered any damage by erroneous official acts. She maintained that
this fact was to be established by the court.
On 18 January 1993 the Nitra District Court dismissed the
applicant's claim for damages. It noted that all decisions invoked by
the applicant were final and had not been quashed for unlawfulness.
As to the applicant's claim for damages pursuant to Section 18
of Act No. 58/1969, the court found that no procedural defects had been
established in the proceedings before the Komárno District Court, and
that this fact had been confirmed in several cases by the appellate
court. The Nitra District Court did not consider it necessary to
establish the facts and take further evidence as requested by the
applicant.
On 20 March 1993 the applicant lodged an appeal with the
Bratislava Regional Court. He claimed that, contrary to the Nitra
District Court's finding, the Supreme Court had quashed decisions in
three of his cases on the ground of unlawfulness. He further alleged
that the court at first instance had failed to establish the facts, to
examine the evidence and to hear the witnesses.
The applicant also complained that the Nitra District Court had
not examined the claim for damages in respect of the removal of his
effects. He claimed that his right to property had been violated, and
that the effects had not been returned to him despite the request by
the Ministry of Justice of 8 January 1990 addressed to the Bratislava
Regional Court. The applicant expressly requested that he should be
heard by the appellate court.
On 25 May 1993 the Bratislava Regional Court upheld the first
instance judgment without hearing the applicant. It found that the
applicant's claim did not meet the requirements of Act No. 58/1969
since (i) the decisions at issue had not been declared unlawful, (ii)
in some cases the applicant had failed to exhaust the available
remedies, and (iii) the decisions had not been quashed and were final.
The Regional Court further noted that in the applicant's case the
courts had no jurisdiction to hear witnesses from the initial
proceedings and take evidence anew as suggested by the applicant since
the proceedings at issue had been terminated by decisions which had
become res judicata. In the Regional Court's view it was irrelevant
that in several cases the Supreme Court had quashed the decisions in
question since thereafter the courts gave new decisions. These
decisions had become final and, moreover, on their merits they were
identical with the initial decisions in that the applicant was
unsuccessful in the proceedings.
In its judgment the Bratislava Regional Court gave reasons only
for the dismissal of the applicant's claim for damages in respect of
proceedings in which final decisions exist.
The relevant domestic law
The applicant lodged the action for damages pursuant to Act
No. 58/1969 of 5 June 1969 on Responsibility for Damage Caused by a
State Organ's Decision or by an Erroneous Official Act ("the Act"), as
amended.
Pursuant to Section 1 of the Act the State is responsible, inter
alia, for damage caused by an unlawful decision which was made by a
State organ when hearing civil cases.
According to Section 3 of the Act, damage caused by an unlawful
decision can be compensated, unless it is justified by the particular
circumstances of the case, only if the participant in the proceedings
has exhausted available remedies.
According to Section 4 para. 1 of the Act compensation for damage
cannot be claimed until the competent organ has quashed the final
decision by which the damage had been caused. A decision of the
competent organ is binding for the court which decides on the claim for
damages.
Pursuant to Sections 9 and 10 of the Act a claim for damages in
respect of an unlawful decision in civil cases has to be put first
before the Ministry of Justice. If the claim is not accepted within
six months the claimant can seek recovery (or recovery of any
outstanding part) before a court.
According to Section 18 of the Act the State is responsible for
damage caused by erroneous official acts committed by persons who carry
out tasks vested in State organs.
According to Section 157 para. 2 of the Code of Civil Procedure,
a court shall, while substantiating its judgment, give a summary of
the submissions before it and explain shortly and clearly (i) which
facts it considers as established and which it finds not to be
established, (ii) upon which evidence it founded the facts it had
established, (iii) its considerations in assessment of the evidence,
and (iv) why it did not take further evidence. The court then assesses
the particular circumstances of the case according to the relevant
provisions it applied.
COMPLAINTS
The applicant alleges a violation of Article 6 of the Convention
in the proceedings relating to his action for damages in that:
a) his case was not examined within a reasonable time;
b) the Bratislava Regional Court did not meet the requirement of an
impartial tribunal since the action concerned its earlier decisions;
c) he was deprived of a fair and public hearing since the courts
failed to establish the facts and hear the witnesses, the Nitra
District Court did not give reasons for dismissing the action, he was
not heard by the Bratislava Regional Court, and the courts failed to
examine the claim for damages in respect of the removal of his effects.
The applicant further complains that since 1988 he has been
deprived of the peaceful enjoyment of his possessions in that some of
his belongings remain in the flat where his former wife lives. He
alleges a violation of Article 1 of Protocol No. 1.
THE LAW
1. The applicant alleges a violation of Article 6 (Art. 6) of the
Convention which reads, so far as relevant, as follows:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law." ...
a) The applicant first complains of the length of the proceedings
before the Nitra District Court and the Bratislava Regional Court.
The Commission does not consider it necessary to examine whether
the applicant has complied with the requirement as to the exhaustion
of domestic remedies laid down in Article 26 (Art. 26) of the
Convention since this part of the application is in any event
inadmissible for the following reasons.
By reason of its competence ratione temporis the Commission may
only assess the length of the proceedings which fall under the period
since (at the earliest) 18 March 1992 which is the date of the
ratification of the Convention by the former Czech and Slovak Federal
Republic. However, in assessing the reasonableness of the period
following 18 March 1992, it will take into account the state of the
proceedings at that time (cf. Minniti v. Italy, Comm. Report 15.10.87,
para. 39, D.R. 59 pp. 5, 21, with further references).
Since 18 March 1992, the Ministry of Justice has dismissed the
applicant's 1990 claim on 5 October 1992, and the Nitra District Court
has dismissed the action for damages (which the applicant completed on
23 October 1992) on 18 January 1993. On 25 May 1993 the Bratislava
Regional Court upheld this decision.
Under these circumstances, bearing in mind the state of the
proceedings on 18 March 1992 the Commission considers that the
proceedings at issue did not last unreasonably long.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
b) The applicant further complains that the Bratislava Regional
Court did not meet the requirement of an "impartial tribunal".
However, it does not appear from the documents submitted that he raised
this issue before the Regional Court. The applicant therefore failed
to comply with the requirement as to the exhaustion of domestic
remedies laid down in Article 26 (Art. 26) of the Convention.
It follows that this part of the application must be rejected
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
c) The applicant also alleges that his right to a "fair and public
hearing" was violated.
As to the alleged violation of the applicant's right to a fair
and public hearing in the part of the proceedings which was held before
the Nitra District Court and the Bratislava Regional Court concerning
the claim for damages in respect of earlier court proceedings in which
final decisions exist, the Commission recalls that Article 6 (Art. 6)
of the Convention extends only to "contestations" (disputes) over
(civil) "rights and obligations" which can be said, at least on
arguable grounds, to be recognised under domestic law (cf. Eur. Court
H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no.
121-A, p. 77, para. 73, with further references).
In the present case the domestic courts found that the
applicant's claim did not meet the formal requirements of Act
No. 58/1969 since the decisions at issue had not been declared
unlawful, in some cases the applicant had failed to exhaust the
available remedies, and the decisions had not been quashed and were
final. However, the applicant would have a right to claim damages only
if these requirements were met.
Under these circumstances the Commission considers that there was
no serious dispute over a civil right recognised under domestic law as
far as the applicant's claim for damages in respect of proceedings in
which final decisions exist is concerned. Therefore, Article 6
(Art. 6) of the Convention is not applicable to the proceedings
concerning the aforesaid claim.
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
As to the alleged violation of the applicant's right to a fair
and public hearing in the part of the proceedings which took place
before the Nitra District Court and the Bratislava Regional Court
concerning the claim for damages in respect of the execution of the
Komárno District Court's order to remove the applicant's effects (i.e.
the claim pursuant to Section 18 of Act No. 58/1969), the Commission
considers that it cannot, on the basis of the file, determine the
admissibility of this complaint and that it is therefore necessary, in
accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give
notice of this part of the application to the respondent Government.
2. Finally, the applicant alleges that his right to the peaceful
enjoyment of his possessions guaranteed by Article 1 of Protocol No. 1
(P1-1) has been violated in that some of his belongings remain in the
flat where his former wife lives.
The Commission notes that the applicant failed to take any legal
action to recover the property concerned from his former wife.
Therefore, in this respect he has not complied with the requirement as
to the exhaustion of domestic remedies laid down in Article 26
(Art. 26) of the Convention.
It follows that this part of the application must be rejected
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO ADJOURN the examination of the applicant's
complaint concerning the absence of a fair and public hearing as
regards his claim for damages in respect of the removal of his
property;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy