CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 octobre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 24505/94                       by Stefan BEKE                       against the Slovak Republic          The European Commission of Human Rights (Second Chamber) sitting in private on 19 October 1995, the following members being present:              MM.    H. DANELIUS, President                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 25 October 1993 by Mr. Stefan BEKE against the Slovak Republic and registered on 29 June 1994 under file No. 24505/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Slovak citizen born in 1950.   He is an accountant and resides in Komárno.        The facts of the case, as submitted by the applicant, may be summarised as follows.        The particular circumstances of the case        The applicant was involved in several sets of court proceedings concerning his divorce and ancillary matters.   The proceedings were held before the Komárno District Court (Okresny súd) at first instance and the Bratislava Regional Court (Krajsky súd) at second instance. In three cases the Supreme Court (Najvyssí súd) found the decisions unlawful and quashed them.   The courts then adopted new decisions which have become final.        On 9 November 1988, pursuant to an order of the Komárno District Court, items belonging to the applicant were removed from a flat assigned to his former wife notwithstanding that the applicant had requested the removal to be postponed on the ground that he was in hospital.   Subsequently the applicant complained that many of his belongings had been left behind, and that some of the items removed had been damaged.   He refused to collect the items left in the flat as he considered that the removal had been vitiated by several procedural irregularities.        On 4 February 1989 the items which had been left in the flat were placed in the local authority's custody, and the applicant was informed that he was free to collect them.   On 8 January 1990 he was informed by the Ministry of Justice that the Bratislava Regional Court had been requested to make the necessary arrangements for return of the items. It appears from the documents submitted that the applicant later recovered those items.   However, he considers that part of his property is still in the flat where his former wife lives.        On 26 September 1988 the applicant lodged an action against the State with the Komárno District Court under Act No. 58/1969 (see below the relevant domestic law).   He completed his submissions to the court on 7 December 1988 and on 23 October 1992.   The applicant claimed material and non-pecuniary damages resulting from wrong decisions and procedural defects in proceedings held, between 1984 and 1991, before the Komárno District Court and the Bratislava Regional Court.   The applicant challenged the Komárno District Court judges for bias (on the ground that the damage had been caused by this court), and on 29 March 1990 the case was transferred to the Nitra District Court.        The applicant claimed, in particular, that he had suffered damage since the courts had reached wrong decisions, failed to take the necessary evidence and to hear the proposed witnesses, relied on false evidence and had not established the facts properly.   He further claimed damages for misbehaviour of judges, their procedural mistakes and failure to comply with the Code of Civil Procedure.   He proposed that witnesses (including judges and witnesses from the initial proceedings) should be heard and evidence taken.        In addition to the aforesaid claim, the applicant also claimed damages on the ground that the persons who had carried out the Komárno District Court's order to remove his personal effects had acted erroneously in that they had committed several procedural mistakes. He submitted details of the damage which he had suffered.        In 1990 the applicant claimed the damages, on the Nitra District Court's advice, from the Ministry of Justice pursuant to Section 9 of Act No. 58/1969.   On 5 October 1992 the claim was dismissed, mainly on the ground that the decisions in question were final and had not been quashed for unlawfulness.   The applicant was informed that he could claim the damages before a court.        In the proceedings before the Nitra District Court a representative of the Ministry of Justice denied that the applicant had suffered any damage by erroneous official acts.   She maintained that this fact was to be established by the court.        On 18 January 1993 the Nitra District Court dismissed the applicant's claim for damages.   It noted that all decisions invoked by the applicant were final and had not been quashed for unlawfulness.        As to the applicant's claim for damages pursuant to Section 18 of Act No. 58/1969, the court found that no procedural defects had been established in the proceedings before the Komárno District Court, and that this fact had been confirmed in several cases by the appellate court.   The Nitra District Court did not consider it necessary to establish the facts and take further evidence as requested by the applicant.        On 20 March 1993 the applicant lodged an appeal with the Bratislava Regional Court.   He claimed that, contrary to the Nitra District Court's finding, the Supreme Court had quashed decisions in three of his cases on the ground of unlawfulness.   He further alleged that the court at first instance had failed to establish the facts, to examine the evidence and to hear the witnesses.        The applicant also complained that the Nitra District Court had not examined the claim for damages in respect of the removal of his effects.   He claimed that his right to property had been violated, and that the effects had not been returned to him despite the request by the Ministry of Justice of 8 January 1990 addressed to the Bratislava Regional Court.   The applicant expressly requested that he should be heard by the appellate court.        On 25 May 1993 the Bratislava Regional Court upheld the first instance judgment without hearing the applicant.   It found that the applicant's claim did not meet the requirements of Act No. 58/1969 since (i) the decisions at issue had not been declared unlawful, (ii) in some cases the applicant had failed to exhaust the available remedies, and (iii) the decisions had not been quashed and were final.        The Regional Court further noted that in the applicant's case the courts had no jurisdiction to hear witnesses from the initial proceedings and take evidence anew as suggested by the applicant since the proceedings at issue had been terminated by decisions which had become res judicata.   In the Regional Court's view it was irrelevant that in several cases the Supreme Court had quashed the decisions in question since thereafter the courts gave new decisions.   These decisions had become final and, moreover, on their merits they were identical with the initial decisions in that the applicant was unsuccessful in the proceedings.        In its judgment the Bratislava Regional Court gave reasons only for the dismissal of the applicant's claim for damages in respect of proceedings in which final decisions exist.        The relevant domestic law        The applicant lodged the action for damages pursuant to Act No. 58/1969 of 5 June 1969 on Responsibility for Damage Caused by a State Organ's Decision or by an Erroneous Official Act ("the Act"), as amended.        Pursuant to Section 1 of the Act the State is responsible, inter alia, for damage caused by an unlawful decision which was made by a State organ when hearing civil cases.        According to Section 3 of the Act, damage caused by an unlawful decision can be compensated, unless it is justified by the particular circumstances of the case, only if the participant in the proceedings has exhausted available remedies.        According to Section 4 para. 1 of the Act compensation for damage cannot be claimed until the competent organ has quashed the final decision by which the damage had been caused.   A decision of the competent organ is binding for the court which decides on the claim for damages.        Pursuant to Sections 9 and 10 of the Act a claim for damages in respect of an unlawful decision in civil cases has to be put first before the Ministry of Justice.   If the claim is not accepted within six months the claimant can seek recovery (or recovery of any outstanding part) before a court.        According to Section 18 of the Act the State is responsible for damage caused by erroneous official acts committed by persons who carry out tasks vested in State organs.        According to   Section 157 para. 2 of the Code of Civil Procedure, a court shall, while substantiating its judgment, give a summary of the submissions before it and explain shortly and clearly (i) which facts it considers as established and which it finds not to be established, (ii) upon which evidence it founded the facts it had established, (iii) its considerations in assessment of the evidence, and (iv) why it did not take further evidence.   The court then assesses the particular circumstances of the case according to the relevant provisions it applied.   COMPLAINTS        The applicant alleges a violation of Article 6 of the Convention in the proceedings relating to his action for damages in that:   a)    his case was not examined within a reasonable time;   b)    the Bratislava Regional Court did not meet the requirement of an impartial tribunal since the action concerned its earlier decisions;   c)    he was deprived of a fair and public hearing since the courts failed to establish the facts and hear the witnesses, the Nitra District Court did not give reasons for dismissing the action, he was not heard by the Bratislava Regional Court, and the courts failed to examine the claim for damages in respect of the removal of his effects.        The applicant further complains that since 1988 he has been deprived of the peaceful enjoyment of his possessions in that some of his belongings remain in the flat where his former wife lives.   He alleges a violation of Article 1 of Protocol No. 1.   THE LAW   1.    The applicant alleges a violation of Article 6 (Art. 6) of the Convention which reads, so far as relevant, as follows:        "1.    In the determination of his civil rights and obligations      ... everyone is entitled to a fair and public hearing within a      reasonable time by an independent and impartial tribunal      established by law."   ...   a)    The applicant first complains of the length of the proceedings before the Nitra District Court and the Bratislava Regional Court.        The Commission does not consider it necessary to examine whether the applicant has complied with the requirement as to the exhaustion of domestic remedies laid down in Article 26 (Art. 26) of the Convention since this part of the application is in any event inadmissible for the following reasons.        By reason of its competence ratione temporis the Commission may only assess the length of the proceedings which fall under the period since (at the earliest) 18 March 1992 which is the date of the ratification of the Convention by the former Czech and Slovak Federal Republic.   However, in assessing the reasonableness of the period following 18 March 1992, it will take into account the state of the proceedings at that time (cf. Minniti v. Italy, Comm. Report 15.10.87, para. 39, D.R. 59 pp. 5, 21, with further references).        Since 18 March 1992, the Ministry of Justice has dismissed the applicant's 1990 claim on 5 October 1992, and the Nitra District Court has dismissed the action for damages (which the applicant completed on 23 October 1992) on 18 January 1993.   On 25 May 1993 the Bratislava Regional Court upheld this decision.        Under these circumstances, bearing in mind the state of the proceedings on 18 March 1992 the Commission considers that the proceedings at issue did not last unreasonably long.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   b)    The applicant further complains that the Bratislava Regional Court did not meet the requirement of an "impartial tribunal". However, it does not appear from the documents submitted that he raised this issue before the Regional Court.   The applicant therefore failed to comply with the requirement as to the exhaustion of domestic remedies laid down in Article 26 (Art. 26) of the Convention.        It follows that this part of the application must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   c)    The applicant also alleges that his right to a "fair and public hearing" was violated.        As to the alleged violation of the applicant's right to a fair and public hearing in the part of the proceedings which was held before the Nitra District Court and the Bratislava Regional Court concerning the claim for damages in respect of earlier court proceedings in which final decisions exist, the Commission recalls that Article 6 (Art. 6) of the Convention extends only to "contestations" (disputes) over (civil) "rights and obligations" which can be said, at least on arguable grounds, to be recognised under domestic law (cf. Eur. Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 77, para. 73, with further references).        In the present case the domestic courts found that the applicant's claim did not meet the formal requirements of Act No. 58/1969 since the decisions at issue had not been declared unlawful, in some cases the applicant had failed to exhaust the available remedies, and the decisions had not been quashed and were final.   However, the applicant would have a right to claim damages only if these requirements were met.        Under these circumstances the Commission considers that there was no serious dispute over a civil right recognised under domestic law as far as the applicant's claim for damages in respect of proceedings in which final decisions exist is concerned.   Therefore, Article 6 (Art. 6) of the Convention is not applicable to the proceedings concerning the aforesaid claim.        It follows that this part of the application is incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        As to the alleged violation of the applicant's right to a fair and public hearing in the part of the proceedings which took place before the Nitra District Court and the Bratislava Regional Court concerning the claim for damages in respect of the execution of the Komárno District Court's order to remove the applicant's effects (i.e. the claim pursuant to Section 18 of Act No. 58/1969), the Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this part of the application to the respondent Government.   2.     Finally, the applicant alleges that his right to the peaceful enjoyment of his possessions guaranteed by Article 1 of Protocol No. 1 (P1-1) has been violated in that some of his belongings remain in the flat where his former wife lives.        The Commission notes that the applicant failed to take any legal action to recover the property concerned from his former wife. Therefore, in this respect he has not complied with the requirement as to the exhaustion of domestic remedies laid down in Article 26 (Art. 26) of the Convention.        It follows that this part of the application must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission, unanimously,        DECIDES TO ADJOURN the examination of the applicant's      complaint concerning the absence of a fair and public hearing as      regards his claim for damages in respect of the removal of his      property;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Second Chamber          President of the Second Chamber        (M.-T. SCHOEPFER)                           (H. DANELIUS)