FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 51543/99
by Zora MACKOVÁ
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 31 August 2004 as a Chamber composed of:
SirNicolas Bratza, President,
MrM. Pellonpää,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 13 June 1999,
Having regard to the partial decision of 1 April 2003,
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 Zora Macková born Schavernoch, is a Slovakian national, who was born in 1921 and lives in Liptovský Mikuláš. She is represented before the Court by Mr Olaf Alexander Macko, her son, who lives in Toronto (Canada). The respondent Government were represented by Mr P. Kresák, their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The father of the applicant was a businessman. The assets of his enterprise included inter alia a real estate complex serving partially as housing for his family and partially as commercial premises for his business activities.
At some point in the late 1940s or early 1950s, the enterprise of the applicant’s father was expropriated and attached, as an independent subsidiary, to a State company. The applicant’s father, who never received any compensation for his expropriated assets, died in 1959.
Under the Extra-Judicial Rehabilitations Act (Zákon o mimosúdnych rehabilitáciách - “the Restitution Act”), the applicant requested the State company on 23 January 1991 to surrender to her “all assets expropriated from her father”.
In its reply of 4 June 1991 the State company informed the applicant that it had taken notice of her request. It interpreted the request as a claim for restitution of assets expropriated “in accordance with the legal rules adopted in the period from 1945 to 1948 without providing for any compensation” within the meaning of Section 2 (3) of the Restitution Act. The State company further informed the applicant that her claim would be dealt with in the context of its privatisation, which was being prepared under the Act 92/1991 on the Transfer of State Property to Private Persons (Zákon o prevode majetku štátu na iné osoby – “the Privatisation Act”).
On 7 September 1991 the applicant repeated her request to the State company. She requested it to surrender the assets concerned and to conclude with her a restitution agreement on the transfer of ownership of these assets under Section 5 (3) of the Restitution Act. In this request, the applicant referred to assets “that have been expropriated without any compensation” as defined in Section 2 (3) of the Restitution Act.
At the same time, the applicant hand‑delivered a letter to the Ministry of Administration and Privatisation of National Property (Ministerstvo pre správu a privatizáciu národného majetku - “the Ministry”), the Ministry of Economic Affairs and the National Property Fund (Fond národného majetku – “the Fund”), in which she requested that the expropriated assets be restored to her.
On 25 March 1992, in accordance with Section 5 (4) of the Restitution Act, the applicant filed a claim for the restitution of the residential house and the commercial premises with the Liptovský Mikuláš District Court (Okresný súd). This request resulted in two separate sets of proceedings, one concerning the residential house and one concerning the commercial premises.
The claim for restitution of the residential house
On 26 October 1992 the District Court requested the applicant to clarify and supplement her previous submissions. The applicant replied on 4 November 1992. She identified the State company as the defendant of her action and argued that the State had taken over and was using the house in question without any legal justification. She relied on Sections 1 (1), 2 (1) (c), (2), (3) – first sentence, 3 (2) (c), 5 (1), (3), (4), 6 (1) (c) (2) of the Restitution Act.
On 13 July 1993 the District Court requested the competent Land Registry Administration to submit to it the Land Registry files concerning the real estate at issue.
On 26 July 1993 the District Court sent a copy of the applicant’s action to the defendant and requested its observations in reply. The defendant replied on 25 August 1993.
On 9 September 1993 the applicant submitted a further specification of the subject‑matter of her action.
On 14 September 1993 the District Court held a hearing. The applicant confirmed that she was seeking restitution of the house on the ground that it had been taken away from her family and used by the State without any legal basis.
By a submission of 23 September 1993 the applicant restated the scope of the subject‑matter of her action.
On 7 October 1993, following a hearing, the District Court gave its first judgment in the case. It took it as established that the house at issue had been taken by the State without any legal basis and had to be restored to the applicant pursuant to Sections 2 (1) (c) and 6 (2) of the Restitution Act. It ordered the State company to conclude with the applicant an agreement within the meaning of Section 5 (3) of the Restitution Act on restitution of the house and to surrender the house to her within 15 days from the date on which the judgment became final.
On 3 November 1993 the judgment was sent by registered mail to both parties. On 4 November 1993 it was received by the applicant. The State company confirmed receipt of the judgment by signing a postal delivery card (doručenka) indicating 22 November 1993 as the date of service.
On 6 December 1993 the State company filed an appeal to the Banská Bystrica Regional Court (Krajský súd). It claimed that the District Court’s judgment had been served on it on 22 November 1993. The State company argued that the State had taken the house in accordance with the then‑applicable legal rules. In such a case, the restitution of the house should be dealt with within the State company’s privatisation on the basis of Section 2 (3) of the Restitution Act in conjunction with Section 47 (1) of the Privatisation Act.
On 23 December 1993 the applicant filed her observations in reply to the appeal. She considered the reasons given by the District Court in its judgment to be correct and proposed that the judgment be upheld.
On 11 January 1994 the District Court transmitted the case‑file to the Regional Court for a determination of the appeal. On 14 March 1994 the Regional Court returned the case‑file to the District Court as the latter had failed to collect the court fee from the appellant State company. On 28 March 1994 the District Court requested the State company to pay the court fee.
On 12 May 1994 the applicant filed further observations in reply to the appeal.
On 8 July 1994 the District Court reiterated its request to the State company to pay the court fee for the appeal and, on 25 August 1994, it re‑submitted the case‑file to the Regional Court for a decision on the appeal.
On 17 November 1994 the Regional Court held a hearing on the appeal. On the same day, having found procedural as well as material flaws, the Regional Court quashed the District Court’s judgment and remitted the case to the District Court for re‑examination.
On 11 January 1995 the District Court requested the parties to submit further evidence. In particular, it requested them to obtain and submit the Decree of 8 July 1950 on nationalisation of the enterprise of the applicant’s father (the “Nationalisation Decree of 1950”). The applicant and the State company replied, respectively, on 25 and 26 January 1995. On 19 February 1995 the applicant submitted further evidence and informed the District Court that she was still searching for the Nationalisation Decree of 1950 and that she would submit it as soon as found.
On 9 March 1995 the applicant informed the District Court that, pursuant to reports of 16 February and 2 March 1995 from the Slovakian National Archive and the Liptovský Mikuláš District Library, respectively, the Nationalisation Decree of 1950 could not be found there.
On 14 September 1995 the applicant appointed a lawyer to represent her in the proceedings.
On 11 October 1995 the Ministry decided under the Privatisation Act to privatise the subsidiary of the State company whose assets comprised the real estate which was the subject of the litigation. The State company was transformed into a private joint stock company (“the Privatised company”). Its assets were transferred to the Fund and later invested in the Privatised company. The Fund subsequently sold 51% of the shares of the Privatised company to a third private party.
On 8 March 1996 the Privatised company informed the District Court that, in the course of its privatisation, the ownership of the State company had been transferred to the Fund.
The hearing scheduled for 14 March 1996 had to be adjourned as none of the parties appeared. The applicant duly apologised for her absence.
On 22 April 1996 the National Archive informed the applicant again that it was unable to find the Nationalisation Decree of 1950.
On 4 June 1996 the applicant requested that the District Court investigate when its judgment of 7 October 1993 had been served on the State company.
On 3 July 1996 the District Court made an inquiry with the Liptovský Mikuláš Post Office about the delivery of the judgment of 7 October 1993 to the State company.
In a letter of 8 July 1996 the Head of the Post Office informed the District Court that, according to the postal records on delivery of registered mail, the District Court’s registered letter of 3 November 1993 had been delivered to the State company on 4 November 1993.
On 2 September 1996 the applicant informed the District Court that she had withdrawn the power of attorney from her previous legal representatives and that she had appointed her son to represent her. The applicant’s son had his permanent residence in Toronto (Canada) but, at that time, was staying and had an address in Slovakia as well. The applicant identified the Privatised company, being the State company’s legal successor, as the new defendant to her action and made a new submission concerning the merits of her case. Among other things, she pointed out that the District Court’s judgment of 7 October 1993 had in fact been received by the State company already on 4 November 1993. She maintained that in order to satisfy the fifteen days’ time‑limit for its appeal of 6 December 1993, the State company had forged the date stated in the postal delivery card to indicate 22 November 1993 as the judgment service date. She requested that that appeal be declared inadmissible as having been lodged out of time and that her action be granted.
On 18 September 1996 the applicant supplemented her claim for compensation in respect of the costs incurred by her in the proceedings.
On 19 September 1996 the District Court held a hearing.
The applicant made further submissions on 20 September and 10 October 1996 and on 22 January 1997.
The Privatised company made further submissions on 11 November 1996 and 22 January 1997.
On 23 January 1997 the District Court held a hearing at which the applicant made a written submission and reiterated her arguments as to the belatedness of the State company’s appeal of 6 December 1993. The hearing was adjourned until 7 February 1997 in order that the District Court could examine the recent submissions of the parties.
On 6 February 1997 the applicant as well as the Privatised company made further written submissions. The latter also apologised for not being able to attend the hearing scheduled for the following day.
On 7 February 1997 the District Court held a hearing. It was adjourned sine die in order to obtain further evidence.
On 10 February 1997 the applicant requested that the District Court grant an interim measure prohibiting the defendant from carrying out any dispositions in respect of the real estate in issue. On 19 February 1997 the applicant informed the District Court which witnesses she wished the latter to hear in support of her action.
On 28 February 1997 the District Court requested information from the Fund concerning the settlement of the applicant’s restitution claims in the process of privatisation of the State company. The Fund replied on 6 March 1997.
The applicant made further written submissions on 21 March, 24 March and 9 April 1997.
On 10 April 1997 the District Court held a hearing. Following it, the District Court gave a new judgment in the case. It established that the commercial assets of the applicant’s late father had as such been expropriated in the manner referred to in Section 2 (3) of the Restitution Act. The house at issue had not in fact formed a part of the commercial assets of the applicant’s father. It therefore had been expropriated unlawfully, i.e. in a situation foreseen in Section 6 (2) of the Restitution Act. The applicant met all the requirements for having the house restored to her. The District Court consequently ordered the Privatised company to restore it to her.
Having found in the applicant’s favour, the District Court further decided that the applicant was entitled to compensation in respect of her legal costs. As to the amount of this compensation, the District Court accepted only a minor part of the applicant’s claim and issued a corresponding order for costs against the Privatised company. It rejected the remainder of the applicant’s claim for costs as being unsubstantiated.
On 14 April 1997 the applicant submitted a further specification of her claim for compensation in respect of the costs incurred by her in the proceedings.
On 27 May 1997 the Privatised company lodged an appeal against the District Court’s judgment of 10 April 1997 with the Žilina Regional Court. It argued inter alia that the applicant’s restitution claim had already been determined and satisfied by the decision of the Ministry of 4 March 1997 (see below). It further argued that there was a legal obstacle recognised by Section 8 (1) of the Restitution Act to the restitution of the house in natura in that the house had became an integral part of the Privatised company’s plant and its restitution would result in disruption of its operations.
On 13 June 1997 the applicant filed her observations in reply to the Privatised company’s appeal. She demanded that the challenged judgment be upheld as being factually and legally correct. She submitted that appeal proceedings were in any event unlawful given the fact that the initial appeal filed by the State company on 6 December 1993 was inadmissible as having been lodged out of time.
The Regional Court called a hearing for 10 February 1998 but it had to be adjourned as neither the applicant nor her representative who was at that time in Canada appeared.
On 26 February 1998 the applicant requested that the Regional Court fix the next hearing for 18 March 1998 as on that day her representative would be able to attend.
On 17 March 1998 the Regional Court held a hearing. The applicant reiterated her objections as to the belatedness of the State company’s appeal of 6 December 1993. Consequently, she considered any further proceedings to be illegal and an abuse of legal process. The hearing had to be adjourned as the legal representative of the Privatised company could not attend due to health problems.
On 21 April 1998 the Regional Court held another hearing. Following it, on the same day, the Regional Court gave a judgment in which it upheld the District Court’s judgment as regards the merits of the case. As to the applicant’s argument concerning the admissibility of the State company’s appeal of 6 December 1993, the Regional Court found it established that the judgment of 7 October 1993 had in fact been served on the State company on 4 November 1993 and not on 22 November 1993. It however held that it was not competent to re‑examine the admissibility of the appeal of 6 December 1993 as this appeal had already been determined by the Banská Bystrica Regional Court in its decision of 17 November 1994.
Finally, the Regional Court found the District Court’s findings in respect of the applicant’s claim for reimbursement of her costs to be “absolutely incomprehensible”. The Regional Court consequently quashed the relevant part of the District Court’s judgment and returned the case‑file to the latter for a new decision on this issue. No further appeal lay against the Regional Court’s judgment of 21 April 1998 as regards the merits of the case. It became final and binding on 20 August 1998.
On 24 August 1998 the Liptovský Mikuláš County Police Department (Obvodné oddelenie Policajného zboru) requested the case‑file to examine further the applicant’s criminal complaint of forgery in connection with the State company’s appeal of 6 December 1993. The District Court transmitted the file to the Police on 2 September 1998 and they returned it on 24 November 1998. The Police decided not to take criminal proceedings on the applicant’s criminal complaint for lack of evidence.
On 1 December 1998 the Regional Court corrected a clerical error in its judgment of 21 April 1998 in that it rectified the incorrectly written file number of that judgment.
On 1 March 1999 a Judicial Enforcement Officer (súdny exekútor), commissioned by the applicant to enforce the District Court’s judgment of 10 April 1997, as upheld by the Regional Court on 21 April 1998, notified the Privatised company that enforcement proceedings had been instituted. The Privatised company filed objections against this enforcement with the District Court.
On 19 May 1999 the District Court dismissed the company’s objections and the enforcement was successfully completed.
On 6 April and 13 October and 14 October 1999 the applicant made further submissions concerning the costs of the trial. She claimed reimbursement of “all costs and expenses incurred by her in connection with the basic proceedings on the merits, the appeal proceedings as well as the enforcement proceedings”. She claimed in particular reimbursement of the additional legal costs and expenses incurred as a result of the Regional Court’s failure to declare the appeal of 6 December 1993 inadmissible. She also claimed compensation for the earnings lost during and as a consequence of the lengthy proceedings on her restitution claim.
On 20 March 2000 the District Court informed the applicant that her claims for reimbursement of the costs and expenses did not meet the formal procedural requirements and instructed her on the correct manner of filing such claims. On 2 May 2001 the applicant submitted a detailed specification of her claim.
In its decision of 21 May 2001 the District Court awarded the applicant a part of her claim for costs and expenses. It rejected the remainder of her claim as unsubstantiated and ill-founded. Although it was open to her, the applicant did not file an appeal against the District Court’s decision of 21 May 2001 and it become final and binding on 13 June 2001.
The claim for restitution of the commercial premises
Further to her restitution claim under Section 5 (4) of the Restitution Act filed on 25 March 1992, the applicant reapplied, on 29 June 1994, to the Liptovský Mikuláš District Court for restitution of the commercial premises. She qualified her claim as a claim for restitution of possessions of which her late father had been deprived “in violation of the then‑applicable legislation and without any compensation”. She claimed that these premises be restored to her in natura.
The State company subsequently went through the process of privatisation (see above). Details of the privatisation operation were set out in a “privatisation project” which was attached to the decision of the Ministry of 11 October 1995 on the State company’s privatisation. It appears that Part “B.2.2” of the privatisation project made provision for the manner in which the applicant’s restitution claims were to be dealt with and satisfied. The decision of 11 October 1995 stated that no appeal could be filed against it. Neither this decision nor the relevant privatisation project has been officially served on the applicant.
On 27 September 1996 the applicant restated her restitution claim filed with the District Court. She submitted that, despite all her efforts, she had been unable to find the Nationalisation Decree of 1950 on which the expropriation of her father’s assets should have been based. She considered that, in these circumstances, the expropriation should be regarded as having taken place in violation of the then‑applicable regulations, i.e. the condition defined in Section 6 (1) (k) of the Restitution Act. She asserted that the District Court was thus competent to determine her claim and demanded restitution of the commercial premises in natura.
In its decision of 4 March 1997, and apparently on the basis of the procedure set out in the privatisation project appended to the decision of 11 October 1995, the Ministry determined the applicant’s restitution claim. It noted that the applicant had raised the claim with the Ministry and with the State company in 1991. It considered it to be established that the commercial premises at issue had been expropriated by the Nationalisation Decree of 1950 and thus “in accordance with the legislation adopted in the period from 1945 to 1948 and without any compensation” as referred to in Section 2 (3) of the Restitution Act. On the basis of this provision the Ministry found that it had jurisdiction to determine the matter in accordance with Section 47 of the Privatisation Act. The Ministry observed that the applicants’ father had 3 children out of whom only the applicant qualified for restitution. She was accordingly entitled to 1/3 of the property at issue.
The Ministry noted that, after the expropriation, new buildings had been constructed on the premises concerned and that, in the meantime, the ownership rights to these premises had been transferred to the Privatised company. The Ministry concluded that in these circumstances it would not be appropriate to restore these premises in natura to the applicant.
The Ministry therefore decided pursuant to Section 47 (1) of the Privatisation Act to satisfy the applicant’s claim in an alternative way. It decided to deliver her shares in a Governmental restitution fund (Reštitučný investičný fond). The Ministry determined the value of the property at issue on the basis of a report obtained from an expert and awarded the applicant shares with the aggregate nominal value corresponding to 1/3 of that value. According to the applicant, the real value of these shares was substantially lower than their nominal value.
The Ministry notified the applicant of its decision of 4 March 1997 by a letter of 6 March 1997. It also advised the applicant that “if she disagreed with the evaluation of her claim, she could assert her claim” before the civil court within fifteen days from the date on which the notification was served on her.
By a letter of 19 March 1997 the applicant informed the District Court and the Ministry that she disagreed with the manner in which her restitution claim was to be satisfied as well as with its evaluation. She expressly stated that it was an “appeal” against the above notification. However, in a letter of 24 March 1997 the applicant’s representative informed the District Court that the letter of 19 March 1997 was only intended to make clear that the applicant disapproved of the decision taken and that it should by no means be considered as a formal appeal.
On 10 April 1997 the District Court dismissed the applicant’s action for restitution in natura of the commercial premises. It noted that, before the State company and the Ministry as well as before the District Court, the applicant had originally claimed restitution on the ground that her father’s property was “expropriated in accordance with the legal rules adopted in the period from 1945 to 1948 without providing any compensation” within the meaning of Section 2 (3) of the Restitution Act. It also noted that on 11 September 1995, i.e. within the time‑limit set forth by Section 47 (4) of the Privatisation Act (as amended by the Act No. 60/1994 Coll.), the Ministry had decided to privatise the State company. The District Court concluded that the Ministry was thus competent to determine the applicants’ restitution claim. It noted that the Ministry had in fact already done so by its decision of 4 March 1997.
The District Court observed that the Ministry had notified the applicant of its decision of 4 March 1997 and that it had advised her of the available remedy by a letter of 6 March 1997. Pursuant to Section 47 (3) of the Privatisation Act, if the applicant disagreed with the evaluation of her claim by the Ministry, she could assert her restitution claim in court. By her submission of 19 March 1997 the applicant informed the District Court in explicit terms that she did not wish to make use of this remedy. The District Court noted that, in any event, such a remedy would be determined in a separate set of proceedings and that it was not the subject‑matter of the proceedings before it.
The District Court finally noted that, in the course of the proceedings, the applicant had sought to change the legal qualification of her restitution claim. She now alleged that the State had taken away the property from her father by “nationalisation which had taken place in violation of the then‑applicable legal rules” within the meaning of Section 6 (1) (k) of the Restitution Act. The applicant argued that, in this case, it was the District Court which had jurisdiction to determine her claim. The District Court concluded that such a re‑qualification was not possible as the applicant’s restitution claim, as originally qualified, had already been satisfied by the Ministry. The applicant appealed to the Žilina Regional Court.
On 25 March 1998 the Regional Court quashed the District Court’s judgment of 10 April 1997. It concurred with the District Court’s view that, insofar as the applicant’s claim originally based on Section 2 (3) of the Restitution Act had already been determined and satisfied by the Ministry, pursuant to Article 135 § 2 of the Code of the Civil Procedure, the courts were not called upon to determine the same claim to the same property, although in the meantime re‑qualified under Section 6 (1) (k) of that Act.
The applicant’s disagreement with the decision of the Ministry could be examined by courts in a separate set of proceedings taken under Article 47 (3) of the Privatisation Act within 15 days from the service of the respective notification. It was however not at issue in the present proceedings.
The Regional Court nevertheless found that the District Court had insufficiently established the scope of the subject‑matter of the applicant’s claim.
Insofar as the action, as restated and supplemented by the applicant in the course of the proceedings, was directed at recovery of property other than that already decided upon by the Ministry in its decision of 4 March 1997, it was to be determined under the Restitution Act.
The Regional Court remitted the case to the District Court and ordered it to re‑establish the scope of the subject‑matter of the action and to re‑examine it in the light of the above conclusion. No appeal lay against the Regional Court’s decision.
On 8 March 1999 the District Court requested the applicant to restate the subject‑matter of her action so as to express it clearly, unequivocally and in line with the applicable procedural rules.
The applicant replied on 25 March 1999. She defined the immovable items the restitution of which she was claiming and stated that she was seeking their restitution on the ground that the State had taken them from her late father in violation of the then‑applicable regulations within the meaning of Section 6 (1) (k) of the Restitution Act. At the same time she raised a claim for “financial compensation for all loss, material and moral damage, lost profit, lost opportunities and unjust enrichment and gain caused by erroneous administrative conduct and inactivity together with interest for late payment”.
On 27 April 1999 the District Court informed the applicant that her submission did not comply with the applicable formal requirements and requested her to define clearly, unambiguously and comprehensibly which plots of land and which constructions she sought to have restored and which costs she requested to have compensated.
In her submission of 10 May 1999 the applicant re‑defined the subject‑matter of her action and stated that she would reformulate her claim for reimbursement of her costs at a later stage.
On 21 October 2003 the District Court again dismissed the applicant’s action for restitution of the commercial premises. It found that the action related partially to the immovables that had already been covered by the decision of the Ministry of 4 March 1997 and partially to other immovable items. As for the first part, the applicant’s restitution claim had already been satisfied by the Ministry. As to the second part, the applicant had failed to establish that her parents had in fact owned these items and that she was entitled to have them restored. The District Court further ordered the applicant to pay the defendant’s legal costs.
By another separate decision of 21 October 2003 the District Court declared the applicant’s claim for reimbursement of her costs inadmissible as, despite its previous instruction and warning, she had failed to raise it in accordance with the applicable procedural rules.
The applicant appealed against both decisions of the District Court of 21 October 2003 and her appeals are currently pending.
B. Relevant domestic law and practice
The Restitution Act (no. 87/1991 Coll.)
On 21 February 1991 the Federal Assembly of the Czech and Slovak Federal Republic enacted the Extra-Judicial Rehabilitations Act. It entered into force on 1 April 1991 and has been amended several times since. It is still in force in Slovakia.
The purpose of the Restitution Act, as set out in Section 1 (1), is to endeavour to mitigate the consequences of certain injustices and property losses which arose between 25 February 1948 and 1 January 1990 by acts falling within the sphere of civil law, labour law, and by administrative acts incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights.
According to Section 2 (1) of the Act, infringements of property rights which took place during this period shall be redressed either by the restitution of property or by financial compensation.
Section 2 (3) provides that, when an ownership title was taken away in accordance with the nationalisation laws adopted between 1945 and 1948 without appropriate compensation having been paid, the person entitled to restitution shall have a claim to redress under the Privatisation Act (see below).
Section 3 provides which persons are entitled to restitution. Under its subsection (2) (c), children and the spouse of the person whose property was taken by the State are entitled to restitution each in equal shares.
The State or other entities in possession of the expropriated or confiscated property on the day of entry into force of the Act (Section 4 (1)) are obliged to surrender and restore such property to the person entitled to restitution upon a written request to this effect made by the person entitled to restitution (Section 5 (1)). If no such request has been filed within six months after the date of the entry into force of the Act, the claim to restitution is forfeited (Section 5 (2)).
Pursuant to Section 5 (3), the State or other entity obliged to make restitution shall conclude an agreement with the person entitled to restitution for surrender of the property and to restore the property to the entitled person within thirty days from the expiry of the time‑limit referred to in Section 5 (2).
Where the State or other entity obliged to make restitution refuses to surrender the property, the entitled person may, within one year after the date of entry into force of the Act, assert his or her restitution claim in civil court (Section 5 (4)).
Section Article 6 (1) (k) provides that the obligation to restore property also applies where the deprivation of property took place during the relevant period in violation of the then‑applicable legal rules.
Under Section 6 (2), in conjunction with Section 2 (1) (c), the obligation to restore property applies also to cases where property was taken by the State without any legal basis and on grounds of political persecution (Section 2 (2)) or actions infringing generally accepted human rights and liberties.
Pursuant to Section 8 (1), constructions which have been substantially modified and have thus lost their original constructional and technical character are not to be restored.
The Privatisation Act (no. 92/1991 Coll.)
On 26 February 1991 the Federal Assembly of the Czech and Slovak Federal Republic enacted the Privatisation Act. It entered into force on 1 April 1991. It has been amended several times and it is still in force in Slovakia. It stipulates the conditions and procedure for the transfer to private hands of State property which is held by State companies, State financial institutions and other State organisations and State property used by organisations founded by municipalities or administered by the Land Fund (Pozemkový fond).
Pursuant to Section 3 (2) property in respect of which claims have been raised under special legislation (including the Restitution Act) falls within the scope of the Privatisation Act. The acquirer of such property becomes liable to make restitution under the special legislation.
In accordance with Section 10 (10) decision ‑making on privatisation is not governed by the general rules on administrative proceedings. A decision on privatisation cannot be reviewed by a court.
Section 47 (1) provides that, where a property has been taken away in the circumstances referred to in Section 2 (3) of the Restitution Act, the person entitled to restitution under the Restitution Act shall have a claim to redress under the Privatisation Act. The manner in which the redress is to be afforded shall be determined in the decision on privatisation concerning that property. The Ministry is to notify the person who raised the claim to redress in writing about the approved manner in which and extent to which the redress is to be afforded without undue delay after the decision on privatisation is given.
Pursuant to Section 47 (2) a written request for redress is to be filed with the Ministry within six months from the date of the entry into force of the Privatisation Act, otherwise the claim is forfeited. The Fund is obliged to settle a claim for redress which is made under subsection (1) in accordance with schedule of the approved privatisation project, but in no case later than one year after the privatisation project was approved.
Under Section 47 (3), if the entitled person disagrees with the evaluation of his or her claim, this person can assert the claim before a court within 15 days from the day when he or she is notified of the decision on the claim.
In accordance with Section 47 (4) (as in force until 23 March 1994) if the claim of an entitled person cannot be satisfied under subsections (1), (2) and (3) because the decision on privatisation was not given by 31 December 1994, the claim shall be settled under the Restitution Act. This deadline was extended until 31 December 1995 by an amendment No. 60/1994 Coll. which entered into force on 24 March 1994.
Pursuant to Section 47 (5) if a claim can be settled by restitution in natura, the settlement of the claim is governed by the Restitution Act and the provisions of Section 47 (4) of the Privatisation Act do not apply.
The Code of the Civil Procedure
In accordance with Article 135 (2) ordinary courts normally have the power to determine issues which otherwise fall within the scope of competence of other authorities. However, if an issue has already been determined by the competent authority, the ordinary courts would rely on its decision.
Part 5 governs the administrative judiciary. Under Article 244 (1) administrative tribunals review the lawfulness of decisions taken by public authorities on the basis of administrative law actions under Chapter 2 of that Part and administrative law appeals under Chapter 3 of that Part.
Pursuant to Article 246 (2) (a), as applicable at the relevant time, the reviewing of decisions given by central bodies of State administration (including ministries) falls within the jurisdiction of the Supreme Court.
In accordance with Article 250l, the provisions of Chapter 3 of Part 5 on administrative law appeals apply in cases where the law bestows on courts the power to determine legal remedies against administrative decisions which have not yet become final and binding.
COMPLAINTS
1. The applicant complained that she did not receive a fair hearing within the meaning of Article 6 § 1 of the Convention in determination of her claim for restitution of the commercial premises in that her claim had been determined arbitrarily by the Ministry which – being a part of the executive – cannot be regarded as an impartial and independent tribunal, whereas the civil courts decided that they were not competent to determine her claim insofar as it had already been decided upon by the Ministry.
2. The applicant also complained under Article 6 § 1 of the Convention that the length of the proceedings on her claim for restitution of the residential house had exceeded a reasonable time.
3. The applicant further complained under Article 1 of Protocol No. 1 that, although her entitlement to restitution of the commercial premises had been accepted, she was not given these premises in natura but merely awarded her financial compensation of a substantially lower real value.
4. The applicant finally complained under Article 13 of the Convention that she had no effective remedy in respect of her complaint under Article 6 § 1 of the Convention of the length of the proceedings on her claim for restitution of the residential house.
THE LAW
1. The applicant complained that her claim for restitution of the commercial premises had been determined arbitrarily by the Ministry which had not been impartial and independent and that the ordinary courts had refused to examine her claim in respect of these premises as it had already been decided upon by the Ministry. She further complained that the proceedings on her claim for restitution of the residential house had lasted unreasonably long. She relied on Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ...”
a) As to the complaint concerning the proceedings leading to the decision of the Ministry, the decision itself and the lack of access to a court in this respect, the Government maintained that the applicant had in fact raised her claim to restitution of the commercial premises in two ways. She firstly filed her claim with the Ministry and, secondly, with the ordinary courts. On 4 March 1997 the Ministry acknowledged her claim.
The only point at dispute was the manner in which the claim was to be satisfied. The Ministry decided that it would satisfy the claim by means of an alternative form of compensation and not by restitution in natura.
The Government asserted that if the applicant had any objections to the way in which her claim had been determined and to the settlement offered by the Ministry, she could have raised them in an administrative law appeal under Section 47 (3) of the Privatisation Act within 15 days from when the notification of the settlement was served on her. The appeal would then have been dealt with by the Supreme Court.
The Government further claimed that in none of their respective decisions had the domestic courts found that they lacked jurisdiction to review the decision of the Ministry on the basis of the administrative law appeal referred to above. In its decision of 25 March 1998 the Žilina Regional Court merely took it as established that the applicant’s claim for restitution of the commercial premises was well‑founded. The Regional Court did so on the basis of the finding of the Ministry in its decision of 4 March 1997 which it considered it to be unnecessary to review.
The Government invited the Court to declare the relevant part of the application inadmissible as being manifestly ill-founded.
The applicant reiterated that the proceedings leading to the decision of the Ministry of 4 March 1997 lacked the guarantees of a fair trial before an independent and impartial tribunal and that this decision was wrongful. She maintained that she had no effective possibility of having this process and the ensuing decision reviewed by a tribunal compatible with the requirements of Article 6 of the Convention. Insofar as the Government referred to the administrative law appeal under Section 47 (3) of the Privatisation Act, the applicant maintained that she could not make proper use of this remedy as she had been denied access to the information and documents she needed for it. She further pointed out that, due to its numerous amendments, the Privatisation Act was not adequately comprehensible to an ordinary citizen and that it appeared to be in conflict with the Restitution Act. She also objected that there had been no effective judicial control available in respect of the whole process of the privatisation of the State company and in respect of its outcome. Finally, the applicant maintained that, even assuming that she had a remedy before the Supreme Court, even that court could not satisfactorily meet the requirements of Article 6 of the Convention.
The Court notes that the applicant asserted her restitution claim concerning the commercial premises at the same time both in administrative proceedings before the Ministry and in judicial proceedings before the ordinary courts.
Her claim was first determined by the Ministry which decided on the legal qualification of the claim, the extent to which it was accepted and the manner in which it was to be satisfied. The Ministry evaluated the accepted part of the claim and offered the applicant corresponding compensation.
The Court observes that Section 47 (3) of the Privatisation Act envisages a possibility for a person who claims restitution and who disagrees with the evaluation of his or her claim to assert the claim before a court. The applicant was advised of this possibility by the Ministry in their letter of 6 March 1997. The provision of Section 47 (3) of the Privatisation Act providing for this judicial remedy is a lex specialis in relation to the provision of Section 10 (10) of that Act.
The assertion of the applicant’s rights under Section 47 (3) of the Privatisation Act would be in a separate set of proceedings under Part 5, Chapter 3 of the Code of the Civil Procedure on the basis of an administrative law appeal filed against the Ministry with the Supreme Court within 15 days from the day on which the applicant was notified by the Ministry of its decision on her claim. This interpretation was confirmed by the findings of the Liptovský Mikuláš District Court and the Žilina Regional Court in their judgments of 10 April 1997 and 25 March 1998, respectively. The District Court and the Regional Court also found that the administrative law appeal pursuant Section 47 (3) of the Privatisation Act was not at issue in the proceedings before them.
The Court observes that the applicant thus had a possibility to seek a review of the decision of the Ministry on her claim for restitution of the commercial premises by an impartial and independent court. The Court sees no valid reason for accepting the applicant’s argument that even the Supreme Court within whose jurisdiction it would fall to determine her administrative law appeal against the decision of the Ministry would not satisfy the requirements of Article 6 of the Convention.
The Court further notes that the decision of the Liptovský Mikuláš District Court and the Žilina Regional Court not to examine the applicant’s claim for restitution in natura of the commercial premises in the original set of proceedings took into account the above considerations and that it was supported by reasoning which does not appear to be manifestly arbitrary or unreasonable. The Court considers that, in the above circumstances, the contested decision of the ordinary courts does not disclose any appearance of a violation of the applicant’s rights protected under Article 6 § 1 of the Convention.
It follows that the relevant part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
b) As to the complaint of the length of the proceedings on restitution of the residential house, the Government considered the period to run from 25 March 1992 when the applicant had lodged her claim for restitution with the Liptovský Mikuláš District Court to 13 September 2001 when the decision of the District Court concerning the costs of the trial had become final and binding.
They asserted that the case was procedurally and factually complex. An extensive amount of evidence had to be obtained and assessed. A wide‑ranging search for the Nationalisation Decree of 1950 had to be carried out. In 1996 the ownership of and the control over the defendant company was restructured and transferred.
The Government maintained that the length of the proceedings was substantially affected by the number and extent of motions and submissions filed by the parties. The applicant did not define precisely the scope of the subject‑matter of her claim, she changed it several times and she was unable to support it by unequivocal evidence. On the other had, she made numerous voluminous submissions some of which she made shortly before hearings. As a consequence, some hearings had to be adjourned. It took the applicant over a year to answer the request of the District Court of 11 January 1995 concerning the Nationalisation Decree of 1950. It further took one year and a half for the applicant to specify her claim for reimbursement of the costs of the trial. The applicant changed her legal representatives several times. One of her representatives – her son – was often staying abroad. The parties did not attend some of the hearings as listed. The evidential value of the evidence adduced by the applicant was limited. Witnesses had to be called in order to corroborate it. The applicant however did not identify her witnesses earlier than in February 1997.
As to the conduct of the domestic authorities, the Government accepted that there had been some delays attributable to the District Court in the period from 25 March 1992 to 26 October 1992 (7 months) and in the period from 4 November 1992 until 13 July 1993 (8 months). This was due to the number of restitution cases submitted to courts and the current reorganisation of the judicial system. However, after the last mentioned date, the District Court handled the case speedily and without undue delays. The Government asserted that there had been no undue delays in the proceedings before the Regional Court.
As to the defendant company’s appeal of 6 December 1993, the Government emphasised that the applicant only raised her objection of inadmissibility on 4 June 1996 when the courts could no longer entertain it.
The Government maintained that any delays in the proceedings which were attributable to the domestic courts had contributed to the overall length of the proceedings only insignificantly.
Finally, the Government considered that the subject‑matter of the proceedings was not of a particular importance for the applicant within the meaning of the Court’s case‑law in length of proceedings cases.
The Government concluded that the length of the proceedings had not been “considerable”, “seriously concerning” or “exceptional” and that it corresponded to the circumstances of the case. They invited the Court to reject the relevant part of the application as being manifestly ill-founded.
The applicant asserted that the period to be considered had commenced already on 7 September 1991 when she had raised her restitution claim with the defendant company. She emphasised that she had duly submitted the statement of her claim and the statement of the relevant facts already in her initial submissions. It was only natural that some of the evidence could be adduced and had to be obtained only at later stages of the proceedings. She contested the argument of the Government that her procedural proposals and submissions had protracted the proceedings. She equally did not accept the Government’s argument that the delays caused by the unsuccessful search for the Nationalisation Decree of 1950 were imputable to her. The applicant however accepted that some delays in the proceedings on the costs may have been caused by the fact that her legal representative had become seriously ill at the relevant time.
The applicant maintained that the defendant company’s defence and appeal had been purely vexatious and in bad faith. In particular, she claimed that the defendant company used fraudulent means in order to meet the time-limit for their appeal of 6 December 1993, which had resulted in all the subsequent litigation.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant also complained that the Slovakian authorities arbitrarily decided against the restitution of the commercial premises to her in natura and, instead, granted her financial compensation of a substantially lower market value. She relies on 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.”
The Government referred to their arguments in respect of the complaint under Article 6 § 1 of the Convention of the lack of access to a court with a view to challenging the decision of the Ministry. If the applicant disagreed with the settlement offered by the Ministry, she could have asserted her claim by means of an administrative law appeal against the Ministry to the Supreme Court. In her submission to the Liptovský Mikuláš District Court of 19 March 1997, the applicant originally seemed to wish to make use of this remedy. If she had pursued it, the District Court would have been obliged to transmit her administrative law appeal to the competent court, in the present case the Supreme Court. The latter would have determined it in a separate set of proceedings. However, in her subsequent letter of 24 March 1997, the applicant clearly stated that she did not wish to lodge a formal administrative law appeal. The Government concluded that the applicant failed to comply with the requirement of exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention.
The applicant stressed that, in substance, her restitution claim was accepted by the domestic authorities. She claimed to have had a “possession” which attracted the protection for Article 1 of Protocol No. 1. Her restitution claim was however compensated arbitrarily in a substantially disadvantageous way. It amounted to a de facto expropriation without adequate compensation. Moreover, her claim was accepted only as to one third. It was wrongfully evaluated too low. She had no say in choosing the evaluator and no chance to comment on his assessment. The letter of 6 March 1997 in which the Ministry informed her of its decision was sent after the statutory deadline and it did not meet the standards for an official notification of a decision. It was thus null and void and could not be appealed against. Even assuming that she had any formal remedy at her disposal, there was no practical purpose in applying for it. The manner in which the domestic authorities dealt with her case amounted to an “administrative practice” of interpreting and applying the relevant legal rules constantly to her disadvantage. In these circumstances, the applicant claimed that any further remedy had no chance of success and considered that she should be exempted from the obligation to use it.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI, pp. 2275-76, §§ 51‑52, and Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67). It is also established that a mere doubt as to the prospect of success is not sufficient to exempt an applicant from submitting a complaint to the competent court (see Whiteside v. the United Kingdom, no. 20357/92, Commission decision of 7 March 1994, Decisions and Reports (DR) 76, p. 80).
In the present case, the Court has found above that the applicant had a possibility of asserting her restitution claim concerning the commercial premises by means of an administrative law appeal against the decision of the Ministry of 4 March 1997 to the Supreme Court.
The Court finds no reasons why it should have been impossible for the applicant to challenge the extent to which the Ministry recognised her claim and the settlement it offered for the recognised part of the claim by making use of the remedy foreseen by Section 47 (3) of the Privatisation Act or why the use of this remedy should be a priori bound to fail. The applicant has not availed herself of this possibility.
In these circumstances and having found no grounds for exempting the applicant from the obligation under Article 35 § 1 of the Convention to exhaust domestic remedies on grounds of an administrative practice (see Akdivar, cited above, § 67), the Court considers that this part of the application must be rejected for failure to exhaust domestic remedies within the meaning of Article 35 § 1.
3. The applicant finally complained that she had had no effective remedy in respect of her complaint under Article 6 § 1 of the Convention of the length of the proceedings on restitution of the residential house. She relied on Article 13 of the Convention which provides as follows:
“Everyone whose rights and freedoms as set forth in [the] 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.”
Referring to their position in respect of the complaint under Article 6 § 1 of the Convention of the length of the proceedings, the Government considered it unnecessary take any position on the complaint under Article 13 of the Convention.
The applicant upheld her complaint and invited the Court to declare it admissible.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint under Article 6 § 1 of the Convention that the lengh of the proceedings on her claim for restitition of the residential house exceeded “reasonable time” and her complaint under Article 13 of the Convention that she had no effective remedy at her disposal in this respect;
Declares the remainder of the application inadmissible.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy