FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 69353/01
by Oľga BLEYOVÁ
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 17 October 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrG. Bonello,
MrM. Pellonpää,
MrK. Traja,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr T. L. Early, Section Registrar,
Having regard to the above application lodged on 11 April 2001,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Oľga Bleyová, is a Slovakian national who was born in 1930 and lives in Bratislava. She is represented before the Court by Mr R. Bockanič, a lawyer practising in Bratislava. The respondent Government are represented by Mrs A. Poláčková, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Factual background
The applicant was married to Mr B. who was a member of the Bratislava III Housing Cooperative (bytové družstvo) which assigned a flat to him. At that time the applicant was not a member of the cooperative. The couple lived in the flat under a lease and, by operation of law, they had the right of joint use (právo spoločného užívania).
In 1974 the marriage was dissolved and Mr B. moved out of the flat.
In 1975 the Bratislava Regional Court (then Mestský súd, at present Krajský súd) cancelled the applicant’s and her former husband’s right of joint use of the flat and ruled that the sole legal tenant was Mr B. The applicant was ordered to move out within 15 days of the date when a substitute dwelling was provided to her. Until then, the applicant would have an absolute right to stay in the flat (právo bývania).
As no substitute dwelling has ever been provided to her, the applicant continues to enjoy her right to stay in the flat.
In 1985 the applicant became a so called “non-resident member” of the cooperative. In 1992 she transferred the membership to a third person. In 1993 she again became a non-resident member.
In February 1993 the cooperative’s board passed a decision excluding Mr B. from its membership for breach of duties. It was noted that he had not been using the flat since 1974. Mr B. appealed against this decision, but his appeal has never been formally determined.
On 30 March 1993 the board annulled its decision of February 1993. The validity of the annulment is disputed. It was investigated following the applicant’s criminal complaint, but no charges were ever brought. The matter was considered to be of a private-law nature and, as such, fell to be determined by the ordinary courts. No criminal case to answer was detected.
In 1994 Mr B. petitioned for the applicant’s eviction on the basis of the 1975 judgment. On 2 August 1995 the Bratislava III District Court (then Obvodný súd, at present Okresný súd) dismissed the petition holding that Mr B.’s rights under that judgment were statute-barred.
In August 1995 the applicant invited the cooperative to sell her the flat under special legislation - Flats and Non-residential Premises Ownership Act (Law no. 182/1993 Coll., as amended - “the 1993 Act”) - which provided for the transfer of ownership of flats to tenants for a regulated price. She did not receive an answer.
In May 1996 the cooperative sold the flat to Mr B. under the 1993 Act.
The sale was registered in the Land Registry and Mr B. became the legal owner of the flat. The applicant subsequently challenged the validity of the sale in the ordinary courts. The course and outcome of her action is a separate subject-matter of the present application and is described in detail below.
On 11 September 1997, following numerous arguments and disturbances, Mr B. and his lawyer, Mrs N., arranged for a locksmith and a removal service to enter the flat forcibly and to start removing the applicant’s belongings from it. The police arrived after a call from the applicant and the operation was halted.
The applicant filed a criminal complaint about the incident and joined a claim for damages to it. On her complaint, Mr B. and Mrs N. were indicted to stand trial on a charge of having organised a breaking and entry within the meaning of Article 238 of the Criminal Code. They were first found guilty in summary proceedings, but the conviction was quashed on appeal. They were then acquitted in ordinary proceedings, but the acquittal was quashed on appeal. The proceedings are still pending.
On 20 January 1998 the applicant lodged a separate action for damages resulting from the incident of 11 September 1997. It is still pending.
Mr B. again sought the applicant’s eviction by way of a court action. It was stayed by the District Court on 16 August 2000 pending the outcome of the proceedings concerning the validity of the transfer of the flat to Mr. B. The action for eviction is still pending.
In 2001 Mr B. was registered in the Registry of Inhabitants as residing permanently in the flat. The registration was investigated following the applicant’s criminal complaint, but no charges were ever brought. The matter was found to be entirely of a private-law nature and, as such, fell within the jurisdiction of the ordinary courts. No criminal case to answer was detected.
On 8 August 2005 the applicant brought an action in the Bratislava III District Court seeking an injunction to restrain Mr B. from disturbing her peaceful enjoyment of the flat. At the same time she sought an interim injunction preventing him from entering the flat. On 16 January 2006 the matter was transmitted to the Bratislava I District Court, which had the territorial jurisdiction to entertain it. It is still pending there.
2. Action concerning validity of transfer of flat
On 19 June 1997 the applicant brought an action against the cooperative in the Bratislava I District Court seeking a judicial ruling declaring the contract of sale of 1996 void on grounds of illegality in that Mr B. had previously been deprived of his membership of the cooperative and, as such, no longer qualified to have the flat transferred to him under the 1993 Act.
On 1 July 1997 the Bratislava I District Court transmitted the action to the Bratislava III District Court, which had territorial jurisdiction.
On 27 August 1997 the Bratislava III District Court invited the defendant to submit observations in reply and the applicant to pay the court fee, which she did on 4 September 1997.
On 16 February and 29 April 1998 the District Court held hearings.
On 15 June 1998 the District Court held another hearing following which, on the same day, it dismissed the action as unfounded.
On 10 August 1998 the applicant lodged an appeal. On the District Court’s request, on 7 October and 26 November 1998, respectively, the applicant corrected her appeal and paid the court fee. On 4 February 1999 the applicant supplemented her appeal.
On 7 April 1999 the Regional Court held a hearing. It had to be adjourned as the applicant had challenged the president of the Regional Court’s chamber on grounds of bias. On 14 April 1999 the applicant supplemented the reasons for the challenge.
On 19 August 1999 the Supreme Court (Najvyšší súd) dismissed the challenge as unfounded.
On 30 September 1999 the Regional Court quashed the judgment of 15 June 1998 for procedural shortcomings and remitted the matter to the District Court for re‑examination. The court observed inter alia that the action should have been directed against both parties to the contract.
On 25 November 1999 the District Court invited the applicant’s lawyer to correct the action by identifying the defendants in line with the judgment of 30 September 1999. On 6 December 1999 the lawyer informed the District Court that on 30 November 1999 the applicant had withdrawn his power of attorney.
On 24 February 2000 the District Court forwarded the invitation to correct the action directly to the applicant, who responded on 6 March 2000.
On 1 June 2000, on the applicant’s motion, the District Court admitted Mr B. to the proceedings as the second defendant in the action.
In their submissions to the District Court filed in September and November 2000, respectively, the cooperative and its former in-house lawyer conceded that the re-admission of Mr B. as a member in 1993 had been contrary to law and to the statute of the cooperative. They also admitted that there had been shortcomings in the transfer of the flat to him and expressed doubts as to the accuracy of the internal records concerning his re-admission.
Between 18 September and 21 December 2000 the District Court held 3 hearings. The hearing called for 29 January 2001 was adjourned due to the absence of the applicant, her lawyer and a witness. It was also noted that, four days previously, the applicant had challenged the District Court judge dealing with the case for bias. The applicant completed the challenge by submitting new information and documents on 30 January and 19 February 2001.
On 30 April 2001 the Regional Court dismissed the challenge as unsubstantiated.
A hearing held before the District Court on 18 July 2001 was adjourned until 12 December 2001 and again until 25 February 2002.
On 8 April 2002 the District Court held a hearing following which, on the same day, it dismissed the action. It concluded that the applicant did not have a “pressing legal interest” in obtaining the ruling sought, which was a conditio sine qua non under Article 80 (c) of the Code of Civil Procedure for the ruling to be made. Her legal status as regards the flat was defined by the judgment of 1975 under which she had an absolute right to stay in the flat until alternative accommodation had been provided to her. The contract of 1996 did not concern her directly and its validity had no effect on her own legal position. The applicant appealed against this judgment.
On 19 June 2003, following a hearing of the appeal on the same day, the Regional Court upheld the judgment of 8 April 2002, concurring fully with the District Court’s findings and conclusions. The judgment became final and binding on 3 September 2003.
In September 2003 the applicant requested that the Prosecutor General exercise his discretionary power and lodge an extraordinary appeal on points of law (mimoriadne dovolanie) on her behalf against the judgments of 2 April 2002 and 19 June 2003. She argued that those judgments were legally wrong and violated her right to respect for her private life and home.
On 13 May 2004 the Prosecutor General acceded to the applicant’s request and lodged the appeal. He maintained that the applicant did have a “pressing legal interest” in having the action determined as she had been living in the flat for 43 years, she was a member of the cooperative and had sought to obtain the flat under the 1993 Act, and that Mr B. had been taking various illegal and unacceptable measures to have her evicted from it. In contrast, Mr B. had vacated the flat decades ago, his rights under the judgment of 1975 were statue‑barred, he had been excluded from the cooperative, his readmission to it was flawed and he was not eligible to have the flat transferred to him under the 1993 Act. The Prosecutor General maintained that the contract of sale of 1996 was illegal and should be declared void.
On 26 October 2004 the Supreme Court dismissed the extraordinary appeal. The applicant had the right to stay in the flat until she had been provided with an alternative dwelling under the 1975 judgment. If she was being disturbed in exercising this right, she could seek judicial protection against the trespasser. Her right to stay could not be interpreted as entailing her standing to sue. The transfer of ownership of the flat from the cooperative to Mr B. had no effect on her legal position. The applicant must have known that Mr B. had a recognised legal title to the flat and thus could not claim to have acted bona fide in obtaining the title herself. The applicant therefore lacked a “pressing legal interest” in the action and, consequently, could not challenge the contract of 1996.
3. Constitutional complaints
On 11 June 2003 the applicant, who was represented by a lawyer, lodged a complaint under Article 127 of the Constitution which she completed on 7 July 2003. She maintained that the length of the proceedings in her action of 1997, as conducted before the District Court and the Regional Court, had been excessive and that their respective decisions of 8 April 2002 and 19 June 2003 had been arbitrary and legally wrong and had violated her right to respect for her private life and home.
On 26 November 2003 the Constitutional Court (Ústavný súd) declared the complaint inadmissible. As to the length of the proceedings in their phase before the District Court, they had ended by the judgment of 8 April 2002. Their examination thus could not bring about their acceleration. In line with the Constitutional Court’s established practice, such an examination was not therefore required. The Constitutional Court did not address the length of the proceedings before the Regional Court.
The examination of the subject‑matter of the applicant’s action was primarily the task of the ordinary courts. They had proceeded in accordance with the applicable procedural rules and had given adequate reasons for their decisions. The Constitutional Court discerned no element of arbitrariness in the contested judgments and found that the remainder of the application was therefore manifestly ill-founded.
In February 2005 the applicant turned to the Constitutional Court again. She sought to challenge the judgments of the District Court, the Regional Court and the Supreme Court of, respectively, 8 April 2002, 19 June 2003 and 26 October 2004 on the ground that they had violated her right to respect for her private and family life and her home.
On 23 March 2005 the Constitutional Court declared the complaint inadmissible as out of time in that it had been lodged outside the statutory two‑month time‑limit.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings in her 1997 action had been excessive.
2. The applicant also complained under Article 8 of the Convention of a violation of her right to respect for her private life and home as a result of the outcome of her 1977 action combined with the persistent attacks by Mr B. and, in particular, the incident of 11 September 1997.
THE LAW
1. The applicant complained that the length of the proceedings in her action of 1997 had been incompatible with the “reasonable time” requirement guaranteed by Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government submitted that the applicant had not exhausted domestic remedies in that she had not raised the complaint before the Constitutional Court under Article 127 of the Constitution. They also argued that, in any event, the complaint was manifestly ill-founded. To that end, they maintained that the subject-matter of the proceedings had been complex and that it had not called for special diligence. The delays were imputable to the applicant, Mr B. and other private persons involved in the proceedings, and not to the domestic authorities.
The applicant contested the Government’s arguments. She emphasised that she had made use of the remedy under Article 127 of the Constitution, albeit without success.
The Court observes that on 11 June 2003 the applicant challenged the length of the proceedings in her 1997 action by way of a complaint under Article 127 of the Constitution (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002‑IX). In her complaint, she challenged the proceedings as a whole, including the phases before the first-instance court and the court of appeal. On 26 November 2003 the Constitutional Court rejected her complaint. It only reviewed the phase of the proceedings before the first-instance court, and took no account of the proceedings before the court of appeal. In these circumstances, even though the case subsequently went before the Supreme Court on an extraordinary appeal on points of law, the Court finds no reason why, for the purposes of Article 35 § 1 of the Convention, the applicant should be required to make use of this remedy anew (compare and contrast Šidlová v. Slovakia, no. 50224/99, §§ 49 and 50, 26 September 2006). It follows that this complaint cannot be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
The period to be taken into consideration began on 19 June 1997 when the applicant lodged her action. It ended on 19 June 2003 when her second appeal was dismissed (i.e. after about 6 years). In this period the action was examined twice by courts at two levels of jurisdiction. The “determination” of the applicant’s “civil rights and obligations” then resumed on 13 May 2004 when the Prosecutor General lodged his extraordinary appeal on points of law. It finally ended on 26 October 2004 when the Supreme Court dismissed that appeal (i.e. after some 5 and half months). The period under consideration was thus in total slightly less than 6 years and 6 months for three levels of jurisdiction.
The “reasonableness” of this period must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
The Court observes that the present case was of some legal and procedural complexity. This was due inter alia to the amount of evidence which had to be obtained and assessed, a substantial part of which dated back to the 1970s. Furthermore, legal and socio-economic conditions had developed over that time and the case had to be examined in the light of those changing developments.
As to the conduct of the applicant, it is to be noted that she lodged the action with a court which had no territorial jurisdiction to deal with it (19 June 1997) and that the action had to be transmitted to the correct court (1 July 1997). The applicant failed to pay the court fees for her action (19 June 1997) and for her appeal (10 August 1998) and did so only upon request (4 September 1997 and 26 November 1998, respectively). She corrected her appeal (7 October 1998) and had to be invited to correct her action (25 November 1999). She challenged the judges dealing with her action for bias on two occasions and both challenges were dismissed as unfounded (19 August 1999 and 30 April 2001). One hearing had to be adjourned due to her and her lawyer’s absence (29 November 2001). The Court observes that these facts contributed to the length of the proceedings and considers that the delays thereby occasioned are imputable to the applicant.
As regards the conduct of the authorities, the action was examined twice by the trial court (the District Court), which held 10 hearings, twice by the court of appeal (the Regional Court), which held 2 hearings, and once by the Supreme Court on an extraordinary appeal on points of law. The first judgment of the trial court had to be quashed for formal shortcomings, which resulted in procedural delays imputable to the respondent State.
Finally, the Court notes that, throughout the proceedings and up until the present, the applicant’s right to stay in the flat has been recognised in law and protected by the courts and other authorities involved (see also the analysis in respect of the complaint under Article 8 of the Convention). What was at stake for the applicant in the proceedings thus cannot be considered as calling for special diligence.
Having regard to the foregoing considerations, in particular the complexity of the matter and the conduct of the applicant, the Court concludes that there is no indication that the overall length of the proceedings was contrary to the requirements laid down in Article 6 § 1 (see, by way of comparison, Kandráčová and Others v. Slovakia (dec.), no. 48674/99, 27 January 2004).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant also complained of a violation of her right to respect for her private life and home in connection with the outcome of the action of 1997 and the attacks to which she had been persistently exposed. She relied on Article 8 of the Convention which provides that:
“1. Everyone has the right to respect for his private ...and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government emphasised that the applicant’s legal position had been established by the judgment of 1975. Since then the applicant had known that the scope of her rights in respect of the flat was limited. She could not be considered to be acting in good faith by seeking more extensive rights decades later.
The applicant’s legal position comprised the right to stay in the flat until such time as she had been provided with a substitute dwelling. The right to stay was not an exclusive right and the applicant’s only claim was to be allowed to stay in the flat. Although the applicant had become a member of the housing cooperative, her status had been only that of a non-resident member. Non-resident members had no specific rights to any specific flats. Therefore, as to the flat in question, by virtue of her membership of the cooperative or otherwise, the applicant had obtained no specific right other than the right to stay.
The applicant’s right to stay in the flat stemmed from the law and had been declared by a final court judgment. She had a full range of legal remedies to protect it. These included claims that potential infringements be halted, that the negative consequences of any such infringements be rectified, and that she be compensated for her damage. The applicant could assert these claims by way of an action as well as by way of a request for an interim measure. In addition, she could raise any actual infringements of this right by way of a criminal complaint.
The Government pointed out that the applicant had already made use of the said remedies and that her actions were still pending. In addition the applicant could also seek protection of her rights by way of an action for protection of her personal integrity under Articles 11 et seq. of the Civil Code.
The Government concluded that the complaint under Article 8 of the Convention had to be rejected for non-exhaustion of domestic remedies.
Irrespective of that, the Government submitted that the applicant ran no risk of losing the roof over her head since she could not be made to leave the flat unless she was at the same time provided with a substitute dwelling. The fact that she had not yet been provided with such a dwelling was not imputable to the State but to Mr B. In so far as he might have attempted to secure her eviction without providing her with an alternative dwelling, the applicant had been afforded legal protection compatible with her right to effective respect for her private life and home. In support of that contention, the Government submitted that the applicant’s 1997 action and her criminal complaints concerning the readmission of Mr B. to the cooperative and the registration of his residence in the flat had been properly examined and decided upon. The fact that they had not produced the result which the applicant had hoped for could not be construed as rendering the protection which she had received inadequate or insufficient.
In connection with the 1997 action, the Government pointed out that it had been examined by courts at three levels of jurisdiction which had all found against the applicant. It could be inferred from their well-reasoned judgments that the applicant had not been eligible to claim ownership of the flat under the 1993 Act. That was essentially the claim that she had been advancing and it had no basis in the Convention.
Lastly, the Government submitted that as Mr B. was the owner of the flat, he was free to seek his registration as a permanent resident of it. His registration was in compliance with the applicable laws, was merely of an administrative nature and gave no basis for any legal claims to the flat.
The Government concluded that the complaint under Article 8 of the Convention was inadmissible as being manifestly ill-founded.
The applicant contested the above arguments. She emphasised in particular that the dismissal of her 1997 action had been arbitrary. As a result, she had been deprived of the possibility to acquire ownership of the flat under the 1993 Act and had been exposed to intrusive and malicious harassment by her former husband. Her criminal complaints in that context had so far led nowhere.
The Court notes that the present complaint is aimed at the dismissal of the 1997 action and at the attacks to which the applicant was exposed in connection with the exercise of her right to stay in the flat. These complaints fall to be examined from the point of view of respect for the applicant’s private life and home within the meaning of Article 8 of the Convention.
The applicant has been staying in the flat, of which she is not the owner, for about 40 years. Her legal title to stay there by implication stems from a judicial decision ordering her to quit the flat as soon as she was provided with a substitute dwelling. The same judicial decision established the exclusive right of Mr B. to use the flat after he had provided the applicant with a substitute dwelling. The applicant unsuccessfully attempted to have the ownership of the flat transferred to her under privileged conditions pursuant to the 1993 Act. She then challenged the transfer of the ownership to Mr B. Her action was examined by courts at three levels of jurisdiction, which all found that the applicant had no more than a right to stay in the flat. This right was legally protected irrespective of who was the owner of the flat. The question of ownership of the flat and the legality of its transfer was a completely different matter, in which the applicant had no direct legal interest. The domestic courts duly supported their finding by reasons which do not appear manifestly unreasonable or arbitrary.
In the light of the above the dismissal of the applicant’s action does not appear to have changed her legal position. In so far as she complains that she had been prevented from acquiring the ownership of the flat, the Court would reiterate that Article 8 of the Convention does not in terms recognise a right to be provided with a home. Nor does the jurisprudence of the Court acknowledge such a right (see Chapman v. the United Kingdom [GC], no. 27238/95, § 99, ECHR 2001‑I.). The dismissal of the applicant’s action of 1997, alone, therefore raises no issue under Article 8 of the Convention.
The Court further observes that the applicant’s legal position as regards the flat was established in 1975. The right to stay in the flat, which was conferred on her at that time, was meant to protect her from a sudden loss of shelter. It was meant to be of a provisional and temporary nature. However, in the present case, the applicant has remained in this situation for about 40 years. In so far as she may argue that she has developed emotional ties to the flat or that, in the circumstances, she should be allowed to stay there indefinitely for any other reason, it is to be observed that the applicant currently occupies the flat and the action by Mr B. for her eviction is still pending. The applicant has an uncontested possibility to raise her arguments and assert her claims in that action and, should the action be allowed, also in the Constitutional Court. Therefore, at this juncture, the temporary character of the applicant’s legal position as regards the flat equally raises no Article 8 issue.
Finally, as to the actual and potential interferences with the applicant’s use of the flat, it is to be noted that the criminal proceedings against Mr B. and Mrs N. to which the applicant joined her claim for damages, the applicant’s action for damages of 20 January 1998, and her action for an injunction to prevent her from being disturbed in the use of the flat are still pending. The applicant has not complained of the course and length of these proceedings, whether taken alone or in combination with the above aspects of the case, before the Constitutional Court under Article 127 of the Constitution. Therefore, in so far as the remainder of the Article 8 complaint has been substantiated and domestic remedies exhausted, it likewise raises no issue under that Article.
It follows that the complaint under Article 8 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention; and
Declares the application inadmissible.
T.L. EARLYNicolas BRATZA
RegistrarPresident
Full & Egal Universal Law Academy