AS TO THE ADMISSIBILITY OF
Application No. 27391/95
by Vincent HÁMORSKY and 4 others
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 April 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. 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 November 1994
by Vincent HÁMORSKY and 4 others against the Slovak Republic and
registered on 24 May 1995 under file No. 27391/95;
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 applicants are Slovak citizens. Their particulars are set
out in the Appendix attached hereto. Before the Commission they are
represented by Mr. J. Malecky, a lawyer practising in Velky Saris. The
facts of the case, as submitted by the applicants, may be summarised
as follows.
By a decision of the Confiscation Commission in Kosice of
15 July 1946 some 250 hectares of land were confiscated from Mr. Pavol
Hámorsky on the ground that he was of Hungarian nationality.
On 27 November 1946 the Confiscation Commission in Kosice
withdrew 50 hectares of the land from confiscation and assigned it free
of charge to Mrs. K., one of the daughters of Mr. Pavol Hámorsky. It
appears that Mrs. K. was officially informed of this decision in 1950.
In the meantime the 50 hectares of land were used by the whole family.
In 1947 Mr. Pavol Hámorsky (who apparently was not informed of
the aforesaid decision) unsuccessfully tried to have 50 hectares of his
land withdrawn from confiscation. He died intestate in 1962.
In 1991 the applicants (two sons of Mr. Pavol Hámorsky and three
children of the latter's other daughter) as well as Mrs. K. applied for
restitution of their father's and grandfather's property pursuant to
the Land Ownership Act of 21 May 1991 (Zákon o úprave vlastníckych
vztahov k pôde a inému polnohospodárskemu majetku).
The claim was dealt with by different authorities. By decision
No. 1861/93/Mi of the Kosice-vidiek Land Office (Pozemkovy úrad) of
27 January 1994, part of the property was to be restored to the
claimants. The Land Office further decided, inter alia, that a further
part of the property could not be restored as it was owned by other
natural persons.
By decision No. 1862/93/94/Mi of the same day the Kosice-vidiek
Land Office granted Mrs. K ownership of part of the land (some 29,21
hectares), which it had refused to restore to all claimants by decision
No. 1861/93/Mi. It held that the land at issue had been taken from
Mrs. K. pursuant to the relevant provisions of Act No. 46/1948, and
that pursuant to Section 6 para. 1 (b) of the Land Ownership Act this
was a relevant reason for its restitution.
The Land Office found that after the property of
Mr. Pavol Hámorsky had been confiscated, 50 hectares of his land had
been transferred to Mrs. K. This land had later been reduced, as a
result of the land reform, to some 40 hectares. In 1950 some 29,21
hectares of this land had been expropriated and the remaining some 9,76
hectares had been put at the disposal of Mrs. K.
The Land Office further established that on 16 July 1970 the
State Notary in Kosice had approved an agreement among the
beneficiaries by which Mrs. K. had acquired the 9,76 hectares of land
mentioned above. This land had been used by a cooperative.
The applicants lodged an appeal against decision
No. 1862/93/94/Mi with the Kosice Regional Court (Krajsky súd). They
claimed that the 29,21 hectares of land (which had been assigned to
Mrs. K. by virtue of the aforesaid decision) as well as the 9,76
hectares of land (which had been granted to Mrs. K. by virtue of
theState Notary's decision of 16 July 1970) should be restored to all
beneficiaries and not only to Mrs. K. The applicants were represented
by a lawyer.
They alleged that the contested land had been first confiscated
from their father and grandfather. In their view, this act had been
unlawful as under the law then in force the property of Mr. Pavol
Hámorsky could not be confiscated. They claimed that the withdrawal
of 50 hectares of land from the confiscated property and the
attribution of the land to Mrs. K. had also been unlawful. The
applicants maintained that Mrs. K. had never been officially registered
as owner of that land.
They also complained that the State Notary's decision of
16 July 1970 was unlawful as the land it related to had been
confiscated from Mr. Pavol Hámorsky.
On 3 June 1994 the Kosice Regional Court upheld the Land Office's
decision No. 1862/93/94/Mi. It established that on 27 November 1946
the Confiscation Commission in Kosice had withdrawn, at Mrs. K.'s
request, 50 hectares of Mr. Pavol Hámorsky's land from the confiscation
and assigned it free of charge to Mrs. K.
This decision was based on the relevant provisions of the Slovak
National Council's Order No. 64/1946 under which a spouse or children
of a person of German or Hungarian nationality, whose agricultural
property fell under the confiscation, were entitled to request that
this property (up to 50 hectares) should not be confiscated, provided
that the spouse or children had Slovak nationality and had or would
acquire Czechoslovak citizenship. Such decisions were to be considered
as an official document which entitled the person concerned to have the
transfer of the property entered in the land registry.
The court found that the land at issue had been reduced, in the
course of the land reform, to some 40 hectares, and that it had been
used by the whole family of Mr. Pavol Hámorsky. In March 1950 some
29,21 hectares of the land, which had still been formally registered
in the name of Mr. Pavol Hámorsky, had been expropriated from Mrs. K.
who had been considered as the real owner.
For these reasons the Kosice Regional Court held that Mrs. K. had
showed, as required by Section 4a of the Land Ownership Act, that she
had owned the land at issue before it had been expropriated and that
the only reason why there had been no formal transfer of ownership had
been the absence of its entry in the land registry.
The remaining part of the property that had been withdrawn from
confiscation, i.e. some 9,76 hectares of land, had been put at the
disposal of Mrs. K., but no ownership certificate had been issued. By
decision of the National Committee in Kosice of 11 May 1951 this
property, with the exception of a house, had also been acquired by the
State and put at the disposal of a co-operative.
The Regional Court further held that by virtue of the agreement
among the beneficiaries approved by the State Notary's decision of
16 July 1970 (the State Notary having apparently not been aware of the
decision of the National Committee in Kosice of 11 May 1951) Mrs. K.
was to be regarded as owner of the 9,76 hectares of land governed by
that decision.
The court concluded that some 38,97 hectares of land originally
owned by Mr. Pavol Hámorsky belonged exclusively to Mrs. K. (i.e. some
29,21 hectares of land which had been taken from her in 1950 and the
9,76 hectares which she had acquired by virtue of the State Notary's
decision of 16 July 1970).
The court quashed a part of the Land Office's decision
No. 1861/93/Mi as according to that decision the beneficiaries were
granted more than 150 hectares of agricultural land. It held that
pursuant to Section 6 para. 3 of the Land Ownership Act only 150
hectares of agricultural land or 250 hectares of both agricultural and
non-agricultural land could be restored to them.
The Regional Court stated in the reasons for its judgment that
the case was sent back to the Kosice-vidiek Land Office to the extent
that the decision No. 1861/93/Mi had been quashed. However, it omitted
to mention this fact in the operative part of the judgment. This
shortcoming was eliminated by the supplementary judgment of
10 August 1994 which was not pronounced publicly.
On 10 June 1994 the applicants protested in writing against the
minutes of the hearing which had been held before the Kosice Regional
Court on 3 June 1994. They complained that the minutes did not state
that only one of them had been allowed to take the floor but had to
stop speaking as he had been constantly interrupted by the President
of the court.
The applicants lodged an appeal on points of law (dovolanie) with
the Supreme Court. On 21 December 1994 the latter discontinued the
proceedings as such a remedy was not available in the applicants' case.
In subsequent proceedings before administrative authorities the
applicants' (and Mrs. K.'s) case was transmitted to the Kosice-mesto
Land Office. On 5 April 1995 the latter granted them compensation for
the land covered by the part of the Kosice-vidiek Land Office's
decision No. 1861/93/Mi which had been quashed.
By July 1995 the beneficiaries had been granted ownership to or
compensation for some 236,7 hectares of land out of some 250 hectares
originally owned by Mr. Pavol Hámorsky.
COMPLAINTS
The applicants complain under Article 6 of the Convention that
the Kosice Regional Court did not establish the facts correctly and
decided erroneously as it did not take into account that under the law
then in force the land of Mr. Pavol Hámorsky should not have been
confiscated. In their view, the transfer, in 1946, of 50 hectares of
the land to Mrs. K. on the mere ground that her husband was a Slovak
citizen was also unlawful. The applicants allege that the property at
issue was expropriated twice, and that the ownership should have been
granted to all beneficiaries as the land was first confiscated from
Mr. Pavol Hámorsky.
They further allege that the proceedings before the Kosice
Regional Court were unfair as they were not allowed to present all
their arguments, and that the supplementary judgment of 10 August 1994
was not pronounced publicly.
Under Article 14 of the Convention the applicants complain that
they were discriminated against in the enjoyment of the property of
their father and grandfather in that the contested 38,97 hectares of
land were acquired by Mrs. K. alone and not by all beneficiaries.
Under Article 13 of the Convention the applicants complain that
their claim was dismissed and that they did not have an effective
remedy against the alleged violation of their rights in the proceedings
before the Kosice Regional Court.
Finally, the applicants allege a violation of Articles 1 and 17
of the Convention.
THE LAW
1. The applicants allege 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. Judgment
shall be pronounced publicly ..."
a) To the extent that the applicants complain that the Kosice
Regional Court did not establish the facts correctly and decided
erroneously, the Commission recalls that it is not called upon to
decide whether or not the domestic courts have correctly assessed the
evidence before them or to deal with an application alleging that
errors of law or fact have been committed by domestic courts, except
where it considers that such errors might have involved a possible
violation of any of the rights and freedoms set out in the Convention
(cf., mutatis mutandis, No. 21283/93, Dec. 5.4.94, D.R. 77 pp. 81, 88,
with further references).
The Commission notes that the Kosice Regional Court examined the
particular circumstances of the applicants' case and evaluated the
evidence before it. For reasons expressly stated in its judgment of
3 June 1994 it upheld, with reference to the relevant provisions of the
Land Ownership Act, the Local Office's decision No. 1862/93/94/Mi and
quashed a part of decision No. 1861/93/Mi. It found that some 38,97
hectares of land originally owned by Mr. Pavol Hámorsky belonged
exclusively to Mrs. K. In the Commission's view this decision is
neither unfair nor arbitrary.
b) The applicants further allege that they were not allowed to
present their arguments in the proceedings before the Kosice Regional
Court and that the supplementary judgment of 10 August 1994 was not
pronounced publicly.
The Commission notes that the applicant who was given the floor
in the proceedings before the Kosice Regional Court decided himself to
stop speaking after he had been several times interrupted by the
President. The applicants were represented by a lawyer and it does not
appear from their submissions that they were prevented from presenting
their case through her.
In the reasons for its judgment of 3 June 1994 the Kosice
Regional Court stated that the applicants' case was transmitted to the
Kosice-vidiek Land Office to the extent that a part of the latter's
decision No. 1861/93/Mi had been quashed. However, this fact was
notmentioned in the operative part of the judgment. This shortcoming
was eliminated by the supplementary judgment of 10 August 1994 which
was not pronounced publicly.
In the subsequent proceedings before administrative authorities
the property covered by the aforesaid supplementary judgment was
restored to the beneficiaries, including the applicants. In these
circumstances the Commission considers that the absence of a public
pronouncement of the supplementary judgment did not affect the
applicant's rights under Article 6 (Art. 6) of the Convention.
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.
2. The applicants complain that they were discriminated against in
the enjoyment of the property of their father and grandfather, and that
they were not granted the same rights as Mrs. K. They allege a
violation of Article 14 (Art. 14) of the Convention which reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission considers it appropriate to examine this complaint
under Article 14 of the Convention in combination with Article 1 of
Protocol No. 1 (Art. 14+P1-1).
The Commission does not consider it necessary to examine whether
the applicants' claim amounted to a possession within the meaning of
the first sentence of Article 1 of Protocol No. 1 (P1-1) since this part of
the application is in any event inadmissible for the following reasons.
In the present case both the Kosice-vidiek Land Office and the
Kosice Regional Court found that the applicants could not be granted
ownership of the land at issue as, for reasons contained in the
judgment of 3 June 1994, this land belonged to Mrs. K. The Commission
has found above that this decision was not arbitrary.
In the Commission's view the applicants and Mrs. K. were not, in
this respect, in a similar situation since by virtue of the decision
of the Confiscation Commission in Kosice of 27 November 1946 the
contested land had been withdrawn from confiscation and assigned to
Mrs. K. For this reason the refusal to grant ownership of this land
to the applicants cannot be considered as discriminatory within the
meaning of Article 14 (Art. 14) of the Convention.
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.
3. The applicants further allege a violation of Article 13 (Art. 13) of the
Convention which provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission notes that the Kosice Regional Court examined the
applicants' claim and decided to dismiss it. However, in accordance
with the Convention organs' case-law the effectiveness of a remedy, for
the purposes of Article 13 (Art. 13) of the Convention, does not depend on the
certainty of a favourable outcome (cf. Eur. Court H.R., Pine Valley
Developments Ltd and Others judgment of 19 November 1991, Series A
no. 222, p. 27, para. 66, with further reference).
To the extent that the applicants complain that they did not have
an effective remedy against the part of the Kosice Regional Court's
judgment of 3 June 1994 by which it upheld the Land Office's decision
No. 1862/93/94/Mi, the Commission recalls that Article 13 (Art. 13) of the
Convention does not require that there should be several levels of
jurisdiction (cf. No. 10153/82, Dec. 13.10.86, D.R. 49 p. 67).
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.
4. Finally, the applicants allege a violation of Articles 1 and 17
(Art. 1, 17) of the Convention.
The Commission has examined these complaints but finds that
insofar as they have been substantiated and are within its competence,
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy