CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 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. 24505/94                       by Stefan BEKE                       against the Slovak Republic          The European Commission of Human Rights (Second Chamber) sitting in private on 4 September 1996, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ              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 Stefan BEKE against the Slovak Republic and registered on 29 June 1994 under file No. 24505/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 19 October 1995 to communicate 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 to the respondent Government and to      declare the remainder of the application inadmissible;   -     the observations submitted by the respondent Government on      29 December 1995 and the observations in reply submitted by the      applicant on 18 February 1996;        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 parties, may be summarised as follows.   A.    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.        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 would be in hospital.   Subsequently the applicant complained that some of his belongings had been left behind, and that some of the items removed had been damaged.        On 26 September 1988 the applicant lodged an action against the State with the Komárno District Court under Act No. 58/1969 (see "The relevant domestic law" below).   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 unlawful decisions and procedural defects in 7 sets of proceedings held, between 1984 and 1991, before the Komárno District Court and the Bratislava Regional 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.        In addition to the aforesaid claim, the applicant also claimed damages on the ground that the removal of his personal effects had been carried out in his absence, and that some of his items had been left behind or damaged.   He alleged that the persons who had carried out the removal had acted erroneously in that they had committed several procedural mistakes.   On 29 March 1990 the case was transferred to the Nitra District Court.        On 25 May 1990 the Ministry of Justice informed the applicant that the removal of his effects had been carried out in accordance with the law.   It recalled that the decision to remove the effects had become final after the applicant had refused, without relevant reasons, to receive them.   Furthermore, the Ministry held that the applicant had been informed about the removal.   It considered that, having regard to the applicant's disrespect for the court's order to move from the flat, the official charged with the removal had been entitled to carry it out in the applicant's absence.   The Ministry found no reason for considering the list of the removed items inaccurate.   For these reasons the Ministry refused to lodge an appeal for preservation of the law in the proceedings concerning the removal of the applicant's property.        On 11 February 1991 the General Prosecutor's Office refused to lodge an appeal for preservation of the law in the applicant's case. It examined, inter alia, the file concerning the removal of the applicant's effects and established that the removal had been ordered on 21 July 1988 as the applicant had failed to move to a different flat that had been put at his disposal.   The General Prosecutor's Office held that the removal had been carried out in compliance with the relevant provisions of the Code of Civil Procedure.        On 6 July 1990, at a preliminary hearing, the Nitra District Court heard both the applicant and a representative of the Ministry of Justice.   Subsequently, the District Court requested that the files concerning the earlier court proceedings, in the course of which the applicant had allegedly suffered damage, should be submitted to it.        In a note on the state of the proceedings of 24 July 1992 the President of the Nitra District Court's chamber stated that two of the aforesaid files (including the file concerning the removal of the applicant's effects) had still not been transmitted to the Nitra District Court as they had been examined by other courts in the context of different proceedings and also by the General Prosecutor's Office. The note further states that the court cannot decide on the applicant's claims without having examined those files.        Upon receipt of the files requested by it the Nitra District Court held oral hearings on 30 September, 19 October, 23 November and 16 December 1992 and on 18 January 1993.   The applicant was present. At the hearing which was held on 30 September 1992 a representative of the Ministry of Justice denied that the applicant had suffered any damage by erroneous official acts.        In the course of the proceedings the applicant referred to his claim concerning the damage caused by the flawed removal of his effects for the first time at the hearing which was held on 19 October 1992. He alleged that he had not received the order concerning the removal. The applicant admitted that he had been informed about the date of the removal.   He stated that on 7 November 1988 he had requested in person the President of the Komárno District Court to postpone the removal on the ground that he had to go to hospital, but his request had not been accepted.   The applicant alleged that some of his effects had been left in the flat where his former wife lived.   He requested that a witness who had attended the removal should be heard.        On 18 January 1993 the Nitra District Court dismissed the applicant's action.   In its judgment it gave a short summary of the applicant's submissions as regards each of his claims and stated that it had taken evidence and examined, inter alia, the file concerning the proceedings related to the removal of the applicant's effects, the opinion of the General Prosecutor's Office and other documents included in the file.        As to the claim for damages relating to unlawful decisions in the applicant's cases, the District Court noted that all decisions invoked by the applicant were final and had not been quashed for unlawfulness as required by Section 4 para. 1 of Act No. 58/1969.        As to the applicant's claim for damages pursuant to Section 18 of Act No. 58/1969, the District Court held:   <Translation>        "Further, in the proceedings [the applicant complained of] it was      not established that the Komárno District Court had committed any      procedural errors, and this had been confirmed on several      occasions also   by the appellate court.   The [District] Court did      not consider it, therefore, necessary to take further evidence      as requested [by the applicant] and decided to dismiss the whole      action as being ill-founded."        On 20 March 1993 the applicant appealed to the Bratislava Regional Court.   He complained, inter alia, that the Nitra District Court had not established the facts and assessed the evidence correctly as regards his claim for damages in respect of the removal of his effects, and that some of his effects had still not been returned to him.   He further complained that the court of first instance had failed to hear the witnesses.        The main hearing before the appellate court was held on 25 May 1993.   According to the record, the President of the chamber first reported on the case.   The applicant then presented his appeal.   He alleged, inter alia, that he had not received the decision concerning the removal of his effects and that the removal had been carried out unlawfully.   He requested that the court should hear witnesses.   The representative of the defendant maintained that the court of first instance had established the facts with sufficient certainty and that its decision was correct.   The record further states that after a short deliberation in camera the chamber delivered a judgment by which it upheld the Nitra District Court's decision.   The judgment was read out, and the reasons for it were also given immediately after the hearing.        The transcript of the judgment of 25 May 1993 states that the Bratislava Regional Court examined the case pursuant to Sections 212 para. 1 and 214 para. 1 of the Code of Civil Procedure and considers the applicant's appeal unfounded as the first instance court established the facts of the case with sufficient certainty and adjudicated on the applicant's claims correctly.   In its judgment the Regional Court further deals in more detail with the applicant's claims related to damage caused by unlawful decisions in the remaining 7 sets of proceedings.        The applicant sought redress before the Constitutional Court (Ústavny súd).   By a letter of 16 March 1994 a judge informed him that the Constitutional Court lacks jurisdiction to amend or to quash the decisions of the general courts, and that further details concerning the protection of the constitutional right to compensation for damage caused by unlawful decisions of State authorities or by erroneous official acts were laid down in Act No. 58/1969.   The letter further stated that the general courts' findings on claims under the aforesaid Act were final, and that they could not be modified or quashed by the Constitutional Court.   B.    The relevant domestic law   1.    The Constitution        Pursuant to Section 46 para. 3, any person is entitled to compensation for damage that was caused by an unlawful decision or by an incorrect official procedure.        Article 48 para. 2 provides, inter alia, that any person has the right to have his or her case tried publicly, to attend the hearings and to challenge any evidence submitted to the court.        Pursuant to Article 130 para. 3, the Constitutional Court may commence proceedings upon a petition (podnet) submitted by legal entities or individuals claiming a violation of their rights.   2.    The State Liability Act        Pursuant to Section 1 of the Act No. 58/1969 on Liability for Damage Caused by a State Organ's Decision or by an Erroneous Official 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, compensation for damage caused by an unlawful decision cannot be claimed until the decision was quashed by the competent organ.        Pursuant to Section 18, the State is liable for damage caused by erroneous official acts committed by persons who carry out tasks vested in State organs.   3.    The Code of Civil Procedure        Pursuant to Section 156 paras. 1 and 2 of the Code of Civil Procedure, a judge, when delivering a judgment, shall read out its operative part and give reasons for it.   A judgment shall be normally delivered immediately after the final hearing.        According to Section 157 para. 2, 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.        Pursuant to Section 212 para. 1, the appellate court shall normally examine the first instance decision to the extent requested by the appellant.        Pursuant to Section 213 para. 1, appellate courts are not bound by the facts established by the first instance courts.        In accordance with Section 214 para. 1, appellate courts shall order oral hearings with a view to examining appeals.        Section 215 provides that at the outset of a hearing before the appellate court a judge shall report on the state of the proceedings. Afterwards the parties shall make their comments and put forward their proposals.   COMPLAINTS        The applicant alleges a violation of Article 6 of the Convention in the proceedings relating to his claim for damages in respect of the removal of his effects.   In particular, he complains that he was deprived of a fair and public hearing as the courts (i) failed to hear the witnesses and therefore did not establish the relevant facts of his case, and (ii) did not give sufficient reasons for dismissing his claim.   He also complains that he was not heard by the Bratislava Regional Court.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 25 October 1993 and registered on 29 June 1994.        On 19 October 1995 the Commission decided to communicate 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 to the respondent Government.   The Commission further decided to declare the remainder of the application inadmissible.        The Government's written observations were submitted on 29 December 1995.   The applicant replied on 18 February 1996.   THE LAW        The applicant complains that he was deprived of a fair and public hearing in that, in particular, the courts failed to hear the witnesses and therefore did not establish the relevant facts of his case, and that they did not give sufficient reasons for dismissing his claim. He 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 ... by an      independent and impartial 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 he 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 both the right to a fair and public hearing laid down in Article 48 para. 2 of the Constitution and the right to compensation for damage caused by erroneous official acts guaranteed by Article 46 para. 3 of the Constitution.        The applicant refers, inter alia, to his correspondence with the Constitutional Court and alleges that he has exhausted all remedies available under Slovak law.        The Commission recalls that on 16 March 1994 a judge of the Constitutional Court informed the applicant that details concerning the protection of the constitutional right to compensation for damage caused by unlawful decisions of State authorities or by erroneous official acts were laid down in Act No. 58/1969.   The applicant was also informed that the general courts' findings on claims under the aforesaid Act were final, and that they could not be modified or quashed by the Constitutional Court.        Furthermore, the Commission has found in a previous case that a petition pursuant to Article 130 para. 3 of the Constitution cannot be considered with a sufficient degree of certainty as an effective remedy in relation to complaints about a violation of the right to a fair and public hearing by a tribunal guaranteed by Article 48 of the Constitution and by Article 6 para. 1 (Art. 6-1) of the Convention (cf. No. 26384/95, Samková v. the Slovak Republic, Dec. 26.6.96, unpublished).   The Commission has not been provided with any relevant new information that would justify taking a different position in the present case.        In these circumstances, the Government's objection relating to non-exhaustion of domestic remedies cannot be upheld.   b)    As to the substance of the application, the Government submit that the proceedings concerning the applicant's claim for damages in respect of the removal of his effects complied with the requirements of Article   6 para. 1 (Art. 6-1) of the Convention.   They recall that the Nitra District Court examined all relevant documents relating to the aforesaid claim, and that the applicant was present at the hearings and was free to make any comments which he considered appropriate.   The Government further recall that the applicant also attended the hearing before the appellate court and was given an opportunity to present his arguments to it.        The applicant contends that his right to a fair hearing was violated as the courts dealing with his case neither accepted his requests for witnesses to be heard, nor did they establish all relevant facts concerning the circumstances under which his effects had been removed.        The Commission recalls that the Convention does not explicitly secure to persons suing for damages the right to have witnesses called, but the right to a fair hearing implies that the interested party must be able to present his or her case under conditions which do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (cf., mutatis mutandis, No. 9938/82, Dec. 15.7.86, D.R. 48 pp. 21, 32).        The Commission further recalls that Article 6 para. 1 (Art. 6-1) of the Convention obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument.   The extent to which this duty to give reasons applies may vary according to the nature of the decision.   It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments.   The question whether a court   has failed   to fulfil   the obligation   to state reasons can only be determined in the light of the circumstances of the case (cf. Eur. Court HR, Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, p. 12, para. 29).        In particular, it is not the task of the Commission to interfere with the legal assessment of a particular claim made by the competent courts under domestic law.   A court's failure to discuss every detail of a party's pleading is not in itself inconsistent with the requirements of a fair hearing.   It is, however, essential that the party's right to be heard is not disregarded and that his or her pleadings are considered by the court even if this is not reflected in explicit terms in the eventual decision (cf. No. 10153/82, Dec. 13.10.86, D.R. 49   pp. 67, 74).        The Commission notes that in the present case the applicant claimed damages in respect of unlawful decisions or erroneous official acts in 7 sets of proceedings which had concerned his divorce and ancillary matters.   He attended the hearings before both the Nitra District Court and the Bratislava Regional Court and was given full opportunity to present his arguments.        In the proceedings before the Nitra District Court the representative of the defendant denied that the applicant had suffered any damage by erroneous official acts.   The applicant had an opportunity to present his arguments to the court in this respect.   He requested that a witness who had attended the removal of his property should be heard.   In its judgment the District Court summed up the applicant's submissions.   It found the hearing of witnesses superfluous as, in its view, the file concerning the removal and the other evidence available showed clearly that the Komárno District Court had not committed any procedural errors.        At the hearing before the Bratislava Regional Court the applicant reiterated his claims and requested that witnesses should be heard. The representative of the defendant maintained that the first instance decision should be upheld as being correct.   After the hearing the Regional Court delivered orally the judgment in the applicant's presence and gave reasons for it.   According to the transcript of its judgment the Regional Court upheld the Nitra District Court's decision as it considered that the latter had established the facts with sufficient certainty and adjudicated on the applicant's claim correctly.   The judgment further gives more detailed reasons why the applicant's claims concerning the damage caused by unlawful decisions were to be rejected.        The Commission considers that the applicant has not shown that he was unable to present his case under conditions which placed him at a substantial disadvantage vis-à-vis the other party as a result of the courts' refusal to call witnesses.   Furthermore, both the judgment of the Nitra District Court and the record of the main hearing before the Bratislava Regional Court indicate that the courts considered the applicant's pleadings.        Given the particular circumstances of the applicant's case and, especially, the diversity of the submissions the applicant brought before the courts in the proceedings at issue, the Commission considers that the domestic courts did not fail to fulfil   the   obligation   to state   reasons for their judgments as required by Article 6 para. 1 (Art. 6-1) of the Convention notwithstanding that in their judgments they did not discuss every detail of the applicant's pleadings in respect of his claim at issue.        In the Commission's view, the proceedings the applicant complains of, considered as a whole, were not in breach of the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.        M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber