CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 1996

.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. 26384/95                       by Mária SAMKOVÁ                       against the Slovak Republic          The European Commission of Human Rights (Second Chamber) sitting in private on 26 June 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                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS              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 10 November 1994 by Mária SAMKOVÁ against the Slovak Republic and registered on 2 February 1995 under file No. 26384/95;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      17 November and 5 December 1995, and the observations and      supplement to the observations in reply submitted by the      applicant on 29 January 1996 and 11 March 1996 respectively;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Slovak national born in 1917.   She is retired and resides in Dolné Vestenice.   Before the Commission the applicant is represented by Mr. J. Maly, a lawyer practising in Bratislava.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the case        In 1961 a plot owned by the applicant and her late husband was expropriated for construction of a zoological garden.   In 1963 they received compensation according to the rules then in force.        In 1991 the applicant claimed restitution of the expropriated land pursuant to Section 6 para. 1 (m) and (r) of the Land Ownership Act (see "The relevant domestic law and practice" below").   As the administration of the zoological garden refused to restore the property, the applicant claimed restitution before the Bratislava Land Office (Pozemkovy úrad - "the Land Office") pursuant to Section 9 para. 4 of the Land Ownership Act.        On 7 April 1992 the Land Office held an examination of the area. Its aim was to determine whether the land served the purpose for which it had been initially expropriated.   The applicant attended the examination together with some 15 other claimants.   The record drawn up after the examination does not contain any reference to the plot claimed by the applicant and to the comments she made in the course of the examination.        On 25 January 1994 the Head of the Property Administration Section of the Bratislava City Council (Magistrát) informed the Land Office that the land claimed by the applicant was used for the purpose for which it had been expropriated.        On 31 January 1994 the Land Office dismissed the applicant's claim.   It found, with reference to information submitted by the administration of the zoological garden and to the letter of the City Council of 25 January 1994, that since animals owned by the zoological garden were kept on the plot, it was used for the purpose for which it had been expropriated.   Therefore, it could not be restored pursuant to Section 6 para. 1 (m) of the Land Ownership Act.   The decision was signed by the Head (prednosta) of the Land Office.        On 8 March 1994 the applicant lodged an appeal to the Bratislava City Court (Mestsky súd).   She alleged that pursuant to Section 6 para. 1 (m) and (r) of the Land Ownership Act she was entitled to restitution of the land as the expropriation had not respected human rights since it had aimed at the liquidation of private property.        The applicant further alleged that no animals had been kept on the plot at issue during the relevant period (i.e. between 1961 and 1 January 1990).   She maintained that animals could be kept on the plot only if the original construction plans had been carried out, which was not the case.   The applicant concluded that her former plot had never served the purpose for which it had been expropriated.   She proposed to hear witnesses including the participants in the examination which had taken place on 7 April 1992.   The applicant expressly requested the court to hold an oral hearing.        Before submitting the applicant's appeal to the City Court, the Land Office ordered a second examination of the site which was connected with an oral hearing pursuant to Section 21 of the Administrative Proceedings Act.   It took place on 24 March 1994.        According to the record there were still some fruit trees on the plot originally owned by the applicant.   The representative of the zoological garden disagreed with the proposal to restore the plot and stated that animals would be kept again on it later that year.   The Land Office concluded that the property at issue could not be restored. The applicant attended the examination but the record contains no note of whether she made any statements.        On 11 May 1994 the Bratislava City Court upheld the Land Office's decision of 31 January 1994.   The court held that the plot was part of the zoological garden's area and therefore served the general purpose of the 1961 expropriation, i.e. the construction of a zoological garden.   In the court's view it was irrelevant whether or not animals were kept on the plot since it served the needs of the zoo as a whole, e.g. for aesthetic and functional purposes.        The City Court found that since compensation had been paid to the former owners, the expropriation could not be regarded as lacking respect for human rights.   With reference to Section 250f of the Code of Civil Procedure it considered that no hearing was necessary in the applicant's case.        The applicant lodged a complaint with the Supreme Court (Najvyssí súd) in which she alleged that the proceedings before the Bratislava City Court had been unfair.   On 29 September 1994 the Supreme Court discontinued the proceedings for lack of jurisdiction.   B.    Relevant domestic law and practice   1.    The Constitution, the Constitutional Court Act and the Constitutional Court's case-law        Article 48 of the Constitution provides as follows:   (Translation)        "1. No one may be deprived of his or her judge.   The jurisdiction      of courts shall be defined by law."        2. Every person has the right to have his or her case tried      publicly without unreasonable delay, to be present at the      proceedings, and to challenge any evidence given therein.   The      public can only be excluded in cases specified by law."        The jurisdiction of the Constitutional Court and the proceedings before it are governed, inter alia, by the following provisions of the Constitution:     (Translation)        Article 127        "The Constitutional Court shall decide on complaints against      final decisions made by central government authorities, local      government authorities and local self-governing bodies in cases      concerning violations of fundamental rights and freedoms of      citizens, unless the protection of such rights falls under the      jurisdiction of another court."        Article 130        "1. The Constitutional Court shall commence proceedings upon a      proposal [návrh] submitted by:            a) no less than one fifth of all members of the National            Council of the Slovak Republic;            b) the President of the Slovak Republic;            c) the Government of the Slovak Republic;            d) a court;            e) the Prosecutor General;            f) any person whose rights shall be adjudicated pursuant to            Article 127.            ...        3. The Constitutional Court may commence proceedings upon a      petition [podnet] submitted by legal entities or individuals      claiming a violation of their rights."        Proceedings before the Constitutional Court are governed in more detail by Act No. 38/1993 ("the Constitutional Court Act").   It provides, so far as relevant, as follows:   (Translation)        Section 18        "3. The proceedings shall be instituted            a) on the day of the delivery of the proposal [návrh] to            the Constitutional Court;            b) when a petition [podnet] has been admitted after its            preliminary examination."        Part 4 of the Constitutional Court Act governs the proceedings concerning constitutional complaints pursuant to Article 127 of the Constitution.   Pursuant to Section 57 of the Act, if the Constitutional Court finds a violation of a fundamental right and freedom in the course of such proceedings, it shall quash the decision complained of.        Apart from Section 18 para. 3 (b) and Section 20 para. 2 (which sets out the formal requirements for lodging a petition) there are no specific provisions governing the proceedings pursuant to Article 130 (3) of the Constitution in the Constitutional Court Act.   The preliminary examination of a petition referred to in Section 18 para. 3 (b) of the aforesaid Act is held in camera.        In its decision of 7 September 1993 in case No. I. ÚS 26/93 (Collection of the Constitutional Court's judgments and decisions, 1993-1994, No. 10/93) the Constitutional Court held that it "lacks jurisdiction to quash or to substitute the general courts' decisions in civil or criminal matters".        In its decision of 2 December 1994 in case No. I. ÚS 59/94 (published in the aforesaid Collection of judgments and decisions under No. 59/94) the Constitutional Court held, inter alia:   (Translation)        "The Constitutional Court ... is an independent judicial      authority charged with the protection of constitutionality within      its jurisdiction as defined by the Constitution...   However, its      jurisdiction does not include the right to quash or amend final      decisions taken by the general courts.   The Constitutional Court      cannot interfere with the general courts' jurisdiction and cannot      act as an appellate court in matters which are within the      jurisdiction of the general courts.   An interference with the      proceedings before the general courts or with their decision-      making would amount to a violation of the constitutional      principle of independence and impartiality of such courts ... as      well as of the principle of independence of their judges..."        On 28 February 1994 the Constitutional Court delivered a judgment (nález) in case No. I. ÚS 8/94 (published in the aforesaid Collection of judgments and decisions under No. 1/94) in which it found, upon a petition introduced by a natural person, a violation of the petitioner's right not to be deprived of his judge guaranteed by Article 48 para. 1 of the Constitution.   The violation found consisted in the fact that a complaint concerning elections had been decided on its merits by a judge of a District Court (Okresny súd) whereas according to the relevant law such a complaint was within the jurisdiction of the Supreme Court.        In its judgment in case No. II. ÚS 26/95 of 25 October 1995 the Constitutional Court found a violation of the petitioner's right to have his case tried without unreasonable delay guaranteed by Article 48 para. 2 of the Constitution.   2.    The State Liability Act        Pursuant to Section 1 of Act No. 58/1969 on Liability for Damage Caused by a State Organ's Decision or by an Erroneous Official Act ("the State Liability Act") of 5 June 1969, as amended, the State is liable, inter alia, for damage caused by an unlawful decision which was made by a State organ when hearing civil cases.        According to Section 4 para. 1 of the aforesaid Act compensation for damage cannot be claimed until the competent organ has quashed the final decision by which the damage was caused.        Section 18 of the Act provides that the State is responsible for damage caused by erroneous official acts committed by persons who carry out tasks vested in State organs.   3.    The Land Ownership Act        Pursuant to Section 6 para. 1 (m) of Act No. 229/91 on Adjustment of Ownership Rights in Land And Other Agricultural Property ("the Land Ownership Act"), real property which was expropriated with payment of compensation shall be restored if it still exists and has never served the purpose for which it was expropriated.        Section 6 para. 1 (r) provides for restitution of property if its owner was deprived of it as a result of political persecution or in a way which is incompatible with generally recognised human rights and freedoms.        Section 9 para. 1 provides that a person entitled to restitution must lodge his or her claim with the appropriate Land Office and at the same time he or she shall request restitution from the person or entity possessing the real property at issue.   The latter is required to conclude, within 60 days, an agreement on transfer of the property with the claimant.        If such an agreement is not reached, the ownership right shall be established, pursuant to Section 9 para. 4, by the appropriate Land Office.   4.    Legislation relating to the proceedings before Land Offices        Pursuant to Section 32 para. 1 of Act No. 330/91 ("the Land Offices Act") Land Offices shall exercise functions of the State relating to the settlement of land property issues in accordance with Act No. 330/91 and other statutory rules. In accordance with para. 1 (c) of the aforesaid Section, Land Offices also perform functions relating to restitution of property pursuant to special regulations including the Land Ownership Act.        Section 33 para. 1 of Act No. 330/91 provides that Land Offices are "special units" of the Ministry of Food and Agriculture.   Pursuant to para. 2 of the same Section, Land Offices are directed by Heads who are appointed and recalled by the Minister of Food and Agriculture.        The proceedings before Land Offices are governed by Act No. 71/1967 (Administrative Proceedings Act).        Sections 3 and 4 of Act No. 71/1967 govern the basic principles of the proceedings before administrative authorities.   Thus, the proceedings must be conducted in accordance with the law, and participants must always be given the opportunity to defend effectively their rights and interests, to challenge the facts of the case and to make proposals as to the proceedings.   Further, the parties must enjoy equal rights and have the same obligations.   The decisions of administrative authorities have to be based on facts that have been established in a trustworthy manner.        Section 9 of the Administrative Proceedings Act provides for exclusion of the administrative organs' officers if their impartiality is open to doubt or if they participated in their official capacity in examination of the case at a different level.        Pursuant to Section 21 paras. 1 and 2 of the aforesaid Act, the administrative authority shall order an oral hearing if it is required by the nature of the matter, in particular where such a hearing will contribute to clarification of the matter at issue.   If the oral hearing is related to examination of a site, it should be held on that site.   The parties to the proceedings must be summoned to attend the oral hearing, and invited to express their comments and proposals in the course of the hearing.        In accordance with Section 21 para. 3 of Act No. 71/1967, oral hearings are not public unless a special legal rule provides or the administrative authority decides otherwise.        Pursuant to Section 32 of Act No. 71/1967, administrative authorities are under the obligation to establish all facts accurately and comprehensively.   For that purpose they have to obtain all necessary supporting documents and data.        Section 33 of Act No. 71/1967 entitles the participants to propose the taking of evidence or supplementary evidence and to question witnesses and experts in the course of the oral hearing or during the examination of the site.   The parties must be given an opportunity to comment on the facts and the way in which they have been established, and to make further proposals.   5.    The Code of Civil Procedure        The lawfulness of the decisions of administrative organs can be examined by courts in accordance with Part 5 of the Code of Civil Procedure which governs the administrative judiciary.        Section 250f entitles the courts to deliver a judgment without prior oral hearing in simple cases, in particular when there is no doubt as to whether the administrative organ established the facts correctly, and the point at issue is a question of law.        Pursuant to Section 250i para. 1, the courts must, when reviewing administrative organs' decisions, take into consideration the facts as they existed at the moment when the decision at issue was taken.        In accordance with Section 250m para. 3, the participants in the proceedings before the court are the parties in the proceedings before the administrative authority and the administrative authority itself, whose decision is to be reviewed.        Pursuant to Sections 250q and 250r, a court examining an administrative authority's decision can either uphold or quash it.   If the decision was not taken pursuant to Section 250f or if the administrative authority did not issue a new decision satisfying the plaintiff's claim, the court may take such evidence as is necessary for review of the decision at issue.   If the decision is quashed, the case is sent back to the administrative authority.   The latter is bound by the legal opinion expressed by the court.   COMPLAINTS        The applicant alleges a violation of Article 6 para. 1 of the Convention in the proceedings before the Bratislava Land Office and the Bratislava City Court in that (i) the decisions were based exclusively on the arguments presented by the defendant, (ii) the court reached an unfair decision because of erroneous interpretation of the law, (iii) the court refused to hear witnesses and failed to establish the facts of the case, and (iv) there was no public hearing in her case.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 10 November 1994 and registered on 2 February 1995.        On 6 September 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 17 November 1995 and supplemented on 5 December 1995.   The applicant replied on 29 January 1996 and supplemented her submissions on 11 March 1996, after an extension of the time-limit.        On 5 December 1995 the Commission granted the applicant legal aid.   THE LAW        The applicant alleges a violation of her rights guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention which reads, so far as relevant, as follows:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair and public hearing ... by an      independent ... tribunal established by law."   a)    The Government submit that the applicant has failed to comply with the requirement as to the exhaustion of domestic remedies laid down in Article 26 (Art. 26) of the Convention as she did not lodge a petition to the Constitutional Court pursuant to Article 130 para. 3 of the Constitution.   In their view, the aforesaid remedy represents a means capable of protecting the right to a fair and public hearing laid down in Article 48 of the Constitution.        In support of their argument the Government invoke the Constitutional Court's judgments in cases No. I. ÚS 8/94 and No. II. ÚS 26/95 (see "The relevant domestic law and practice" above).   They add that a Constitutional Court's finding of a violation of a fundamental right or freedom entitles the person concerned to claim damages pursuant to Act No. 58/1969.        The applicant contends that the Constitutional Court's judgments in the cases invoked by the Government are irrelevant because the merits of her case are different.   She submits that the bringing of proceedings pursuant to Section 130   para 3 of the Constitution is within the discretionary power of the Constitutional Court.        Further, in such proceedings the Constitutional Court can only establish whether there was a violation of individual rights guaranteed by the Constitution.   Such a finding does not have any specific impact on the act or decision complained of.   In particular, the Constitutional Court cannot grant the right at issue or impose any obligation on the authority concerned.   The applicant concludes that a petition to the Constitutional Court could not reasonably be expected to be effective in her case.        The Commission recalls that Article 26 (Art. 26) of the Convention only requires the exhaustion of such remedies which are effective, sufficient and available (cf., e.g., No. 18926/91 and No. 19777/92, Dec. 30.8.93, D.R. 75 pp. 179, 189).        For a remedy to be effective, it must be accessible, i.e. the person concerned must be able to institute the relevant proceedings himself (cf. No. 12604/86, Dec. 10.7.91, D.R. 70 p. 125), and it must be capable of remedying the criticised state of affairs directly, and not merely indirectly (cf. Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, pp. 16-17, para. 29).    Moreover, a remedy must exist with a sufficient degree of certainty to be regarded as effective (cf. No. 11613/85, Dec. 16.5.90, D.R. 65 p. 75).        The Commission first notes that unlike in cases of constitutional complaints pursuant to Article 127 of the Constitution, the proceedings pursuant to Article 130 para. 3 of the Constitution are considered as being instituted only if the Constitutional Court, after a preliminary examination of the petition, decides to admit it.   Thus, although the person concerned can lodge a petition directly to the Constitutional Court, the formal institution of proceedings depends on the latter's decision.        The Commission further notes that in the judgment in case No. I. ÚS 8/94 of 28 February 1994 the Constitutional Court found a violation of the right guaranteed by Article 48 para. 1 of the Constitution due to the fact that a court had decided on a matter in which it lacked jurisdiction under Slovak law.   Further, in its judgment in case No. 26/95 of 25 October 1995 the Constitutional Court found a violation of the petitioner's right to have his case tried without unreasonable delay guaranteed by Article 48 para. 2 of the Constitution.        However, in the applicant's case the decision not to hold an oral hearing was taken pursuant to Section 250f of the Code of Civil Procedure, i.e. the taking of such a decision was within the competence of the judge.   The Commission recalls in this respect that the Constitutional Court has held on several occasions that it cannot interfere with the decisisions of the general courts, nor can it act as an appellate court in matters which are within the jurisdiction of the general courts.        Finally, the Commission considers that even a possible Constitutional Court finding of a violation of the applicant's right to a fair and public hearing would not be capable of remedying the criticised state of affairs directly as the Constitutional Court lacks jurisdiction to quash the general courts' decisions.   Thus, the Constitutional Court could not afford redress for the violation of the Convention alleged by the applicant even if the latter were successful in the proceedings pursuant to Article 130 para. 3 of the Constitution.      It is true that the applicant could then claim damages pursuant to the State Liability Act.   However, pursuant to Section 4 para. 1 of the aforesaid Act compensation for damage caused, inter alia, by an unlawful decision which was made by a State organ when hearing civil cases cannot be claimed until the competent organ has quashed the final decision by which the damage was caused, and the Constitutional Court lacked jurisdiction to quash the Bratislava City Court's judgment of 11 May 1994.        As to the possibility of claiming damages pursuant to Section 18 of Act No. 58/1969 (i.e. on the ground that the acting of the judge dealing with the applicant's case was erroneous), and even assuming that the award of damages could be considered as a direct remedy to the alleged breach of the applicant's rights, the Government have not cited a single example of case-law to show that such an action had any genuine prospect of success (cf, mutatis mutandis, 11282/84, Dec. 12.11.87, D.R. 54 pp. 70, 86).        In the light of the foregoing the Commission does not consider that a petition pursuant to Article 130 para. 3 of the Constitution could have been regarded with a sufficient degree of certainty as an effective remedy in the applicant's case.   Accordingly, the Government's objection relating to non-exhaustion of domestic remedies cannot be upheld.   b)    As to the merits of the application, the Government consider that Article 6 (Art. 6) of the Convention is applicable to the present case. They submit that at first instance the applicant's claim was dealt with by the Bratislava Land Office pursuant to Section 9 para. 4 of the Land Ownership Act, i.e. by an impartial and independent administrative authority.        The Government refer to the relevant provisions of the Administrative Proceedings Act (cf. "The relevant domestic law and practice" above, para. 4) and submit that they provided sufficient guarantees for the applicant's case to be heard in conformity with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.        The Government submit that the Bratislava Land Office dealt with the applicant's case in accordance with the aforesaid provisions. Thus, apart from the examination of the site at issue which was connected with an oral hearing, the Land Office also took other evidence by requesting the views of the Bratislava City Council.   The applicant was notified of all procedural steps taken by the Land Office.        Furthermore, the Government point out that in the context of appellate proceedings the Bratislava Land Office held a second examination of the site at issue which was connected with an oral hearing pursuant to Section 21 of the Administrative Proceedings Act. As there were no relevant new facts established, the applicant's appeal was submitted for a decision to the Bratislava City Court.   The latter considered that the facts of the case had been established by the Land Office correctly.   For this reason it decided the case pursuant to Section 250f of the Code of Civil Procedure without ordering an oral hearing.        In the Government's view, the requirement of a fair and public hearing by an independent and impartial tribunal laid down in Article 6 para. 1 (Art. 6-1) of the Convention has been complied with in the proceedings before the Bratislava Land Office.   The Government submit that the requirements of Article 6 para. 1 (Art. 6-1) of the Convention were less strict in the proceedings before the Bratislav City Court as the latter dealt with the applicant's case at second instance.   They conclude that the absence of an oral hearing before the Bratislava City Court was not, in view of the particular circumstances of the case, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.        The applicant contends that there was no fair and public hearing before an independent and impartial tribunal in her case.   She submits that the Land Office did not establish the facts correctly and that she was not given the opportunity to have this shortcoming redressed.   In particular, she contends that her comments concerning the plot at issue made during the examination which was held on 7 April 1992   were not included in the record.   Moreover, the record did not make any mention of the examination having taken place on the applicant's former plot on that day.        Since the record served as the basis for the Land Office's decision, the applicant was obliged to seek redress before the Bratislava City Court which decided without taking the evidence suggested by her.   The applicant submits that the second examination of the site which was held on 24 March 1994 in the context of appellate proceedings could not establish the facts as they had existed during the relevant period.        After an examination of these issues in the light of the parties' submissions, the Commission considers that they raise questions of fact and law which can only be determined by an examination of the merits. It follows that the applicant's complaints cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds of inadmissibility have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.   Secretary to the Second Chamber       President of the Second Chamber         (M.-T. SCHOEPFER)                        (H. DANELIUS)