BEKE v. THE SLOVAK REPUBLIC



                      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 4 September 1996, the following members being present:

           Mrs.  G.H. THUNE, President

           MM.   J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 L. LOUCAIDES

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           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 Stefan BEKE against the Slovak Republic and registered on 29 June

1994 under file No. 24505/94;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the Commission's decision of 19 October 1995 to communicate 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 to the respondent Government and to

     declare the remainder of the application inadmissible;

-    the observations submitted by the respondent Government on

     29 December 1995 and the observations in reply submitted by the

     applicant on 18 February 1996;

     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 parties, may be

summarised as follows.

A.   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.

     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 would be

in hospital.  Subsequently the applicant complained that some of his

belongings had been left behind, and that some of the items removed had

been damaged.

     On 26 September 1988 the applicant lodged an action against the

State with the Komárno District Court under Act No. 58/1969 (see "The

relevant domestic law" below).  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 unlawful decisions

and procedural defects in 7 sets of proceedings held, between 1984 and

1991, before the Komárno District Court and the Bratislava Regional

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.

     In addition to the aforesaid claim, the applicant also claimed

damages on the ground that the removal of his personal effects had been

carried out in his absence, and that some of his items had been left

behind or damaged.  He alleged that the persons who had carried out the

removal had acted erroneously in that they had committed several

procedural mistakes.  On 29 March 1990 the case was transferred to the

Nitra District Court.

     On 25 May 1990 the Ministry of Justice informed the applicant

that the removal of his effects had been carried out in accordance with

the law.  It recalled that the decision to remove the effects had

become final after the applicant had refused, without relevant reasons,

to receive them.  Furthermore, the Ministry held that the applicant had

been informed about the removal.  It considered that, having regard to

the applicant's disrespect for the court's order to move from the flat,

the official charged with the removal had been entitled to carry it out

in the applicant's absence.  The Ministry found no reason for

considering the list of the removed items inaccurate.  For these

reasons the Ministry refused to lodge an appeal for preservation of the

law in the proceedings concerning the removal of the applicant's

property.

     On 11 February 1991 the General Prosecutor's Office refused to

lodge an appeal for preservation of the law in the applicant's case.

It examined, inter alia, the file concerning the removal of the

applicant's effects and established that the removal had been ordered

on 21 July 1988 as the applicant had failed to move to a different flat

that had been put at his disposal.  The General Prosecutor's Office

held that the removal had been carried out in compliance with the

relevant provisions of the Code of Civil Procedure.

     On 6 July 1990, at a preliminary hearing, the Nitra District

Court heard both the applicant and a representative of the Ministry of

Justice.  Subsequently, the District Court requested that the files

concerning the earlier court proceedings, in the course of which the

applicant had allegedly suffered damage, should be submitted to it.

     In a note on the state of the proceedings of 24 July 1992 the

President of the Nitra District Court's chamber stated that two of the

aforesaid files (including the file concerning the removal of the

applicant's effects) had still not been transmitted to the Nitra

District Court as they had been examined by other courts in the context

of different proceedings and also by the General Prosecutor's Office.

The note further states that the court cannot decide on the applicant's

claims without having examined those files.

     Upon receipt of the files requested by it the Nitra District

Court held oral hearings on 30 September, 19 October, 23 November and

16 December 1992 and on 18 January 1993.  The applicant was present.

At the hearing which was held on 30 September 1992 a representative of

the Ministry of Justice denied that the applicant had suffered any

damage by erroneous official acts.

     In the course of the proceedings the applicant referred to his

claim concerning the damage caused by the flawed removal of his effects

for the first time at the hearing which was held on 19 October 1992.

He alleged that he had not received the order concerning the removal.

The applicant admitted that he had been informed about the date of the

removal.  He stated that on 7 November 1988 he had requested in person

the President of the Komárno District Court to postpone the removal on

the ground that he had to go to hospital, but his request had not been

accepted.  The applicant alleged that some of his effects had been left

in the flat where his former wife lived.  He requested that a witness

who had attended the removal should be heard.

     On 18 January 1993 the Nitra District Court dismissed the

applicant's action.  In its judgment it gave a short summary of the

applicant's submissions as regards each of his claims and stated that

it had taken evidence and examined, inter alia, the file concerning the

proceedings related to the removal of the applicant's effects, the

opinion of the General Prosecutor's Office and other documents included

in the file.

     As to the claim for damages relating to unlawful decisions in the

applicant's cases, the District Court noted that all decisions invoked

by the applicant were final and had not been quashed for unlawfulness

as required by Section 4 para. 1 of Act No. 58/1969.

     As to the applicant's claim for damages pursuant to Section 18

of Act No. 58/1969, the District Court held:

     "Further, in the proceedings [the applicant complained of] it was

     not established that the Komárno District Court had committed any

     procedural errors, and this had been confirmed on several

     occasions also  by the appellate court.  The [District] Court did

     not consider it, therefore, necessary to take further evidence

     as requested [by the applicant] and decided to dismiss the whole

     action as being ill-founded."

     On 20 March 1993 the applicant appealed to the Bratislava

Regional Court.  He complained, inter alia, that the Nitra District

Court had not established the facts and assessed the evidence correctly

as regards his claim for damages in respect of the removal of his

effects, and that some of his effects had still not been returned to

him.  He further complained that the court of first instance had failed

to hear the witnesses.

     The main hearing before the appellate court was held on 25 May

1993.  According to the record, the President of the chamber first

reported on the case.  The applicant then presented his appeal.  He

alleged, inter alia, that he had not received the decision concerning

the removal of his effects and that the removal had been carried out

unlawfully.  He requested that the court should hear witnesses.  The

representative of the defendant maintained that the court of first

instance had established the facts with sufficient certainty and that

its decision was correct.  The record further states that after a short

deliberation in camera the chamber delivered a judgment by which it

upheld the Nitra District Court's decision.  The judgment was read out,

and the reasons for it were also given immediately after the hearing.

     The transcript of the judgment of 25 May 1993 states that the

Bratislava Regional Court examined the case pursuant to Sections 212

para. 1 and 214 para. 1 of the Code of Civil Procedure and considers

the applicant's appeal unfounded as the first instance court

established the facts of the case with sufficient certainty and

adjudicated on the applicant's claims correctly.  In its judgment the

Regional Court further deals in more detail with the applicant's claims

related to damage caused by unlawful decisions in the remaining 7 sets

of proceedings.

     The applicant sought redress before the Constitutional Court

(Ústavny súd).  By a letter of 16 March 1994 a judge informed him that

the Constitutional Court lacks jurisdiction to amend or to quash the

decisions of the general courts, and that further details concerning

the protection of the constitutional right to compensation for damage

caused by unlawful decisions of State authorities or by erroneous

official acts were laid down in Act No. 58/1969.  The letter further

stated that the general courts' findings on claims under the aforesaid

Act were final, and that they could not be modified or quashed by the

Constitutional Court.

B.   The relevant domestic law

1.   The Constitution

     Pursuant to Section 46 para. 3, any person is entitled to

compensation for damage that was caused by an unlawful decision or by

an incorrect official procedure.

     Article 48 para. 2 provides, inter alia, that any person has the

right to have his or her case tried publicly, to attend the hearings

and to challenge any evidence submitted to the court.

     Pursuant to Article 130 para. 3, the Constitutional Court may

commence proceedings upon a petition (podnet) submitted by legal

entities or individuals claiming a violation of their rights.

2.   The State Liability Act

     Pursuant to Section 1 of the Act No. 58/1969 on Liability for

Damage Caused by a State Organ's Decision or by an Erroneous Official

Act of 5 June 1969, as amended, the State is liable, inter alia, for

damage caused by an unlawful decision which was made by a State organ

when hearing civil cases.

     According to Section 4 para. 1, compensation for damage caused

by an unlawful decision cannot be claimed until the decision was

quashed by the competent organ.

     Pursuant to Section 18, the State is liable for damage caused by

erroneous official acts committed by persons who carry out tasks vested

in State organs.

3.   The Code of Civil Procedure

     Pursuant to Section 156 paras. 1 and 2 of the Code of Civil

Procedure, a judge, when delivering a judgment, shall read out its

operative part and give reasons for it.  A judgment shall be normally

delivered immediately after the final hearing.

     According to Section 157 para. 2, 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.

     Pursuant to Section 212 para. 1, the appellate court shall

normally examine the first instance decision to the extent requested

by the appellant.

     Pursuant to Section 213 para. 1, appellate courts are not bound

by the facts established by the first instance courts.

     In accordance with Section 214 para. 1, appellate courts shall

order oral hearings with a view to examining appeals.

     Section 215 provides that at the outset of a hearing before the

appellate court a judge shall report on the state of the proceedings.

Afterwards the parties shall make their comments and put forward their

proposals.

COMPLAINTS

     The applicant alleges a violation of Article 6 of the Convention

in the proceedings relating to his claim for damages in respect of the

removal of his effects.  In particular, he complains that he was

deprived of a fair and public hearing as the courts (i) failed to hear

the witnesses and therefore did not establish the relevant facts of his

case, and (ii) did not give sufficient reasons for dismissing his

claim.  He also complains that he was not heard by the Bratislava

Regional Court.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 25 October 1993 and registered

on 29 June 1994.

     On 19 October 1995 the Commission decided to communicate 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 to the respondent Government.  The Commission further

decided to declare the remainder of the application inadmissible.

     The Government's written observations were submitted on

29 December 1995.  The applicant replied on 18 February 1996.

THE LAW

     The applicant complains that he was deprived of a fair and public

hearing in that, in particular, the courts failed to hear the witnesses

and therefore did not establish the relevant facts of his case, and

that they did not give sufficient reasons for dismissing his claim.

He 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 ... by an

     independent and impartial tribunal established by law."

a)   The Government submit that the applicant has failed to comply

with the requirement as to the exhaustion of domestic remedies laid

down in Article 26 (Art. 26) of the Convention as he did not lodge a

petition to the Constitutional Court pursuant to Article 130 para. 3

of the Constitution.  In their view, the aforesaid remedy represents

a means capable of protecting both the right to a fair and public

hearing laid down in Article 48 para. 2 of the Constitution and the

right to compensation for damage caused by erroneous official acts

guaranteed by Article 46 para. 3 of the Constitution.

     The applicant refers, inter alia, to his correspondence with the

Constitutional Court and alleges that he has exhausted all remedies

available under Slovak law.

     The Commission recalls that on 16 March 1994 a judge of the

Constitutional Court informed the applicant that details concerning the

protection of the constitutional right to compensation for damage

caused by unlawful decisions of State authorities or by erroneous

official acts were laid down in Act No. 58/1969.  The applicant was

also informed that the general courts' findings on claims under the

aforesaid Act were final, and that they could not be modified or

quashed by the Constitutional Court.

     Furthermore, the Commission has found in a previous case that a

petition pursuant to Article 130 para. 3 of the Constitution cannot be

considered with a sufficient degree of certainty as an effective remedy

in relation to complaints about a violation of the right to a fair and

public hearing by a tribunal guaranteed by Article 48 of the

Constitution and by Article 6 para. 1 (Art. 6-1) of the Convention (cf.

No. 26384/95, Samková v. the Slovak Republic, Dec. 26.6.96,

unpublished).  The Commission has not been provided with any relevant

new information that would justify taking a different position in the

present case.

     In these circumstances, the Government's objection relating to

non-exhaustion of domestic remedies cannot be upheld.

b)   As to the substance of the application, the Government submit

that the proceedings concerning the applicant's claim for damages in

respect of the removal of his effects complied with the requirements

of Article  6 para. 1 (Art. 6-1) of the Convention.  They recall that

the Nitra District Court examined all relevant documents relating to

the aforesaid claim, and that the applicant was present at the hearings

and was free to make any comments which he considered appropriate.  The

Government further recall that the applicant also attended the hearing

before the appellate court and was given an opportunity to present his

arguments to it.

     The applicant contends that his right to a fair hearing was

violated as the courts dealing with his case neither accepted his

requests for witnesses to be heard, nor did they establish all relevant

facts concerning the circumstances under which his effects had been

removed.

     The Commission recalls that the Convention does not explicitly

secure to persons suing for damages the right to have witnesses called,

but the right to a fair hearing implies that the interested party must

be able to present his or her case under conditions which do not place

him or her at a substantial disadvantage vis-à-vis his or her opponent

(cf., mutatis mutandis, No. 9938/82, Dec. 15.7.86, D.R. 48 pp. 21, 32).

     The Commission further recalls that Article 6 para. 1

(Art. 6-1) of the Convention obliges courts to give reasons for their

decisions, but cannot be understood as requiring a detailed answer to

every argument.  The extent to which this duty to give reasons applies

may vary according to the nature of the decision.  It is moreover

necessary to take into account, inter alia, the diversity of the

submissions that a litigant may bring before the courts and the

differences existing in the Contracting States with regard to statutory

provisions, customary rules, legal opinion and the presentation and

drafting of judgments.  The question whether a court  has failed  to

fulfil  the obligation  to state reasons can only be determined in the

light of the circumstances of the case (cf. Eur. Court HR, Ruiz Torija

v. Spain judgment of 9 December 1994, Series A no. 303-A, p. 12, para.

29).

     In particular, it is not the task of the Commission to interfere

with the legal assessment of a particular claim made by the competent

courts under domestic law.  A court's failure to discuss every detail

of a party's pleading is not in itself inconsistent with the

requirements of a fair hearing.  It is, however, essential that the

party's right to be heard is not disregarded and that his or her

pleadings are considered by the court even if this is not reflected in

explicit terms in the eventual decision (cf. No. 10153/82, Dec.

13.10.86, D.R. 49  pp. 67, 74).

     The Commission notes that in the present case the applicant

claimed damages in respect of unlawful decisions or erroneous official

acts in 7 sets of proceedings which had concerned his divorce and

ancillary matters.  He attended the hearings before both the Nitra

District Court and the Bratislava Regional Court and was given full

opportunity to present his arguments.

     In the proceedings before the Nitra District Court the

representative of the defendant denied that the applicant had suffered

any damage by erroneous official acts.  The applicant had an

opportunity to present his arguments to the court in this respect.  He

requested that a witness who had attended the removal of his property

should be heard.  In its judgment the District Court summed up the

applicant's submissions.  It found the hearing of witnesses superfluous

as, in its view, the file concerning the removal and the other evidence

available showed clearly that the Komárno District Court had not

committed any procedural errors.

     At the hearing before the Bratislava Regional Court the applicant

reiterated his claims and requested that witnesses should be heard.

The representative of the defendant maintained that the first instance

decision should be upheld as being correct.  After the hearing the

Regional Court delivered orally the judgment in the applicant's

presence and gave reasons for it.  According to the transcript of its

judgment the Regional Court upheld the Nitra District Court's decision

as it considered that the latter had established the facts with

sufficient certainty and adjudicated on the applicant's claim

correctly.  The judgment further gives more detailed reasons why the

applicant's claims concerning the damage caused by unlawful decisions

were to be rejected.

     The Commission considers that the applicant has not shown that

he was unable to present his case under conditions which placed him at

a substantial disadvantage vis-à-vis the other party as a result of the

courts' refusal to call witnesses.  Furthermore, both the judgment of

the Nitra District Court and the record of the main hearing before the

Bratislava Regional Court indicate that the courts considered the

applicant's pleadings.

     Given the particular circumstances of the applicant's case and,

especially, the diversity of the submissions the applicant brought

before the courts in the proceedings at issue, the Commission considers

that the domestic courts did not fail to fulfil  the  obligation  to

state  reasons for their judgments as required by Article 6 para. 1

(Art. 6-1) of the Convention notwithstanding that in their judgments

they did not discuss every detail of the applicant's pleadings in

respect of his claim at issue.

     In the Commission's view, the proceedings the applicant complains

of, considered as a whole, were not in breach of the requirements of

Article 6 para. 1 (Art. 6-1) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.

   M.-T. SCHOEPFER                              G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber

 

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