CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 novembre 2004

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Casadevall ,   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   J. Borrego Borrego ,   Mr   J. Šikuta, judges , and Mr M. O'Boyle , Section Registrar , Having regard to the above application lodged on 12   October 1999, Having deliberated, decides as follows: THE FACTS The applicants, Mrs   Marta Veselá and Mr   Tobiáš Loyka, are Slovakian nationals, who were born in 1939 and 1947 respectively and live in Bratislava. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be   summarised as follows. The applicants are the owners of a   commercial company (“the company”). The company had originally the legal form of a   limited liability company and had its registered seat in Bratislava. It was then transformed into a   joint stock company and its seat was moved to Banská Bystrica and then back to Bratislava. The first applicant is also the chairperson of the company's board of directors and the second applicant is the chairperson of its supervisory board. In 1996 the company bought a   peat plant which was composed of a   peat extraction site and operational buildings and facilities. The applicants subsequently learned that in 1991 a   group of original owners and legal successors of original owners of the land on which the extraction site was located had raised a   claim with the Dolný Kubín Land Office ( Okresný úrad, odbor pozemkový, poľnohospodárstva a   lesného hospodárstva ) for restitution of their ownership title to it. They maintained that the land in issue had never actually been used for the purpose for which it had been expropriated in 1956, this being a   legal ground for restitution recognised under Section   6 (1) (m) of the Land Ownership Act of 1991. On 23   July 1996 the Land Office granted the restitution claim. It observed that the reason for the extraction site's expropriation had been defined in the expropriation decision of 1956 as “the construction of a   peat extraction plant”. The Land Office found that the specific parcels of land which were in issue had merely been used as a   peat reservoir while the plant as such had been constructed on other parcels. The Land Office concluded that the actual use of the litigious land was different from the use foreseen in the expropriation decision. The restitution claim was therefore well founded under Section   6 (1) (m) of the Land Ownership Act. The company challenged this decision by an   administrative ‑ law appeal. On 20   September 1996 the case ‑ file was transmitted to the Banská Bystrica Regional Court ( Krajský súd ) for a   decision on the appeal. On 29   November 1996 the Banská Bystrica Regional Court quashed the decision of 23   July 1996 and remitted the case to the Land Office for reconsideration. The Regional Court found that the Land Office had failed to   establish the relevant facts adequately and that there had been serious procedural flaws. The Regional Court finally expressed the view that the peat reservoir was an   integral part of the peat plant. By constructing the complex of the plant the purpose of the expropriation had been met in respect of the whole real property concerned. On 27   May 1997 the Tvrdošín Land Office again granted the restitution claim arriving at similar conclusions as in the decision of 23   July 1996. The company challenged this decision by an   administrative ‑ law appeal arguing that the District Office had failed to   follow the binding legal view of the case expressed by the Banská Bystrica Regional Court in its judgment of 29   November 1996. On 29   May 1998 the Žilina Regional Court upheld the decision of the Land Office of 27   May 1997. It found that the purpose of the expropriation, as defined in the expropriation decision, was “to   construct” a   peat plant on it. The land was however used for “extraction” of peat and no plant as such had been constructed on it. The Regional Court conceded that the purpose of the expropriation had obviously been defined inaccurately. This inaccuracy however could not be   relied on to disadvantage the restitution claimants. The decision was not subject to an ordinary appeal and it became final and binding on 8   July 1998. On 24   November 1998, on the company's petition, the Prosecutor General lodged an   extraordinary appeal on points of law ( mimoriadne dovolanie ) against the judgment of 29   May 1998 with the Supreme Court ( Najvyšší súd ). He challenged the conclusions of the Žilina Regional Court for being legally incorrect and objected that they were based on findings of fact which had no supported in the evidence taken. At the same time the Prosecutor General requested that the Supreme Court stay the enforceability of the contested judgment pending a   decision on the appeal. On 26   May 1999 the Supreme Court petitioned for proceedings before the Constitutional Court with a   view to   repealing as unconstitutional the provisions of the Code of the Civil Procedure vesting in the Prosecutor General the power to   challenge final decisions of ordinary courts by an   extraordinary appeal on points of law. On the same day the Supreme Court stayed the proceedings concerning the Prosecutor General's appeal of 24   November 1998 pending the outcome of the proceedings before the Constitutional Court. On 19   July 2000 the Constitutional Court dismissed the Supreme Court's petition. On 13   December 2000 the Supreme Court quashed the judgment of 29   May 1998 and remitted the case to the Žilina Regional Court for re ‑ examination. It found that the relevant facts had been established inadequately in that, inter alia, no consideration had been given to the company's argument that drain channels and a   railway had been constructed on the land under dispute. On 16   May 2001 the Supreme Court corrected some textual errors in its judgment. On 26   June 2002 the Supreme Court excluded the entire bench of the Žilina Regional Court from dealing with the case and ruled that it was to   be   determined by the Košice Regional Court. It did so at the request of the President of the Žilina Regional Court's Chamber joined by all judges of that court on the ground that they felt biased against the applicants who had challenged their impartiality several times in submissions of an   offensive nature. The proceedings are still pending before the Košice Regional Court. In September 2002 the company turned to the Constitutional Court with a   complaint under Article   127 of the Constitution. It objected inter alia that the Supreme Court had remained inactive in the case in the period from 24   November 1998 to 13   December 2000 in violation of Article   6 §   1 of the Convention. On 11   December 2002 the Constitutional Court declared the complaint inadmissible. As regards the objection in respect of the proceedings before the Supreme Court, the Constitutional Court noted that these proceedings had ended with the decision of 13   December 2000 prior to the introduction of the constitutional complaint. Their examination therefore could not bring about their acceleration. In line with its established case ‑ law the Constitutional Court held that, therefore, the relevant part of the complaint was manifestly ill-founded. B.     Relevant domestic law and practice 1.     The Constitution Article   48 (2) provides, inter alia , that every person has the right to   have his or her case tried without unjustified delay. Prior to 1   January 2002 there was no “effective remedy” within the Convention meaning in Slovakia as regards this right (see, mutatis mutandis , Bánošová v.   Slovakia (dec.), no.   38798/97, 27   April 2000). As from 1   January 2002 the Constitution has been amended in that, inter alia , natural and legal persons can complain about a   violation of their fundamental rights and freedoms pursuant to Article   127. Under this provision, the Constitutional Court has the power, in the event that it finds a   violation of Article   48   (2) of the Constitution, to   order the authority concerned to   proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a   result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v.   Slovakia (dec.), nos.   57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22   October   2002). 2.     The Constitutional Court Act The implementation of the above constitutional provisions is set out in more detail in Sections 49 to 56 of Constitutional Court Act No.   38/1993, as amended. Section   53   (3) provides that a   constitutional complaint can be   filed within a   period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period commences when the complainant could have become aware of them. 3.     The Constitutional Court's practice It has been the Constitutional Court's practice to   examine alleged violations of the right to a   hearing without undue delay only where the relevant remedy was filed with it at a   time when the alleged violation occurred or was still continuing (see for example the decision of 20   May   1999 under the file no.   I.   ÚS   34/99). In the proceedings file no.   IV. ÚS 176/03 the plaintiff complained to the Constitutional Court, inter alia , about the length of proceedings concerning her maintenance. The action was originally filed with the Košice   II District Court in 1998. The question arose whether the first instance and the second instance court judges were impartial. On 24   May 1999 the Supreme Court decided that the question of impartiality of the judges at the first instance would be   determined by the Žilina Regional Court. The latter decided on 28   January 2000 that the action would be   examined at first instance by the Michalovce District Court which determined it on 11   December 2002. On 10   September 2003 the Žilina Regional Court upheld the first instance judgment. In her complaint to the Constitutional Court of 28   February 2003 the plaintiff alleged that the ordinary courts had violated her right to a   hearing without undue delay. The Constitutional Court declared this complaint manifestly ill-founded on 9   October 2003. The decision stated that, insofar as the complaint related to the part of the proceedings leading to the Supreme Court's decision of 24   May 1999, it had been filed out of time since, at the moment of the introduction of the constitutional complaint, the relevant part of the proceedings was no longer pending. For similar reason the Constitutional Court rejected the complaint in respect of the subsequent proceedings before the Michalovce District Court which had ended on 11   December 2002. As to the appellate proceedings before the Žilina Regional Court, the Constitutional Court noted that they had lasted less than five months and found that this period was not excessive. 4.     The Code of the Civil Procedure Part   5 of the Code 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. In accordance with Article   250l the provisions of Chapter   3 of Part   5 concerning administrative ‑ law appeals apply only in cases where the law, such as for example Section   9 (4) of the Land Ownership Act (see below), specifically bestows on courts the power to   determine legal remedies ( opravné prostriedky ) against administrative decisions which have not yet become final and binding. Pursuant to Articles   250q and 250r the administrative tribunal reviewing an   administrative authority's decision on the basis of an   administrative ‑ law appeal has the power to   uphold or quash the reviewed decision. It may take such evidence as is necessary for the review. When the administrative tribunal decides to   quash the reviewed decision, the case is remitted back to the administrative authority which is bound by the legal opinion expressed by the tribunal. Under Article   250s, as amended by Act 424/2002 Coll., any   decision of an   administrative tribunal upholding a   decision of an   administrative authority on the basis of an   administrative ‑ law appeal may be challenged by an   appeal. 5.     The Land Ownership Act The Land Ownership Act No.   229/1991 Coll., as amended, provides for the possibility of the restoration of agricultural land and certain other agricultural assets (immovable as well as movable) which were confiscated between 25   February 1948 and 1   January 1990. Pursuant to Section   6 (1) (m) immovable property is to   be restored if it was expropriated in the above period for compensation and if it still exists but has never served the purpose for which it was expropriated. Under Section   9 §   1 of this Act, a   claimant shall lodge a   restitution claim with the competent Land Office and, at the same time, invite the person holding the property in issue to restore them to him/her. If the legal or natural person holding the property does not contest the restitution claim, the holder is required to   conclude, within sixty days, a   restitution agreement with the claimant. Such an   agreement must be   approved by the Land Office. If no such agreement has been concluded, the claim is to   be   determined by the Land Office (Section   9 §   4) the decision of which may be   reviewed by an administrative tribunal on the basis of an   administrative ‑ law appeal (Section   9 §   7). COMPLAINTS 1.     The applicants complain under Article   6 §   1 of the Convention that the proceedings concerning the restitution claims as a   whole lacked the guarantees of a   fair hearing. In particular they complain that the right of access to a   court was not respected in that under the applicable procedural rules the administrative judiciary does not have a   full jurisdiction to review the decision of the Land Office. They maintain that, under the applicable rules, an   administrative tribunal has only the power to   review the “legality” of the decision of the Land Office and that it cannot review fully its factual assessment of the case. 2.     Relying on Article   6 §   1 of the Convention, the applicants also complain that the length of the proceedings concerning the restitution claims has been excessive. They maintain that the period to   be   considered commenced on 20   September 1996 when the Land Office's case ‑ file was transmitted to the Banská Bystrica Regional Court. They point out that the Supreme Court failed to   take any decision in respect of the Prosecutor General's request that the enforceability of the Žilina Regional Court's judgment of 29   May 1998 be   stayed. 3.     Under Article   13 of the Convention in conjunction with Article   6 §   1 of the Convention the applicants finally complain that there was no effective remedy in respect of the Žilina Regional Court's judgment of 29   May 1998 and in respect of the length of the proceedings. THE LAW 1.     The applicants complain that the proceedings in the present case fell short of the guarantees of a   fair hearing within a   reasonable time in violation of Article   6 §   1 of the Convention which, insofar as relevant, provides: “1.     In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] tribunal...” a)     The Court considers that it is not called upon to   decide at this stage whether the applicants themselves can be   considered victims within the meaning of Article   34 of the Convention of a   violation of the right to a   fair hearing under Article   6 §   1 of the Convention in the contested proceedings which formally concern their company as the relevant part of the application is in any event inadmissible for the following reason. The Court recalls that the question whether proceedings before national authorities satisfy the requirements of a   fair hearing can in principle only be   determined by examining the proceedings as a   whole, that is to say only once they have been concluded (see   Kuráková v.   Slovakia (dec.), no.   37895/97, 1   February 2001). In the present case the restitution claims were granted on 27   May 1997 by the Tvrdošín Land Office. The administrative ‑ law appeal against this decision was dismissed, on 29   May 1998, by the Žilina Regional Court. The Regional Court's dismissal was however later quashed by the Supreme Court on 13   December 2000. The administrative ‑ law appeal against the decision of 27   May 1997 thus fell to   be   determined anew at the Regional Court's level where it is still pending. The Court also notes that, when deciding again on this appeal, under Article   250q of the Code of the Civil Procedure, the Regional Court has the power to   take such evidence as is necessary for the review and that, under Article   250s of that Code, if it upholds the decision of the Land Office, its judgment may further be   challenged by an   appeal. In these circumstances the Court considers that the complaint of unfairness of these proceedings is premature and must be   rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. b)     As to the complaint of the length of the proceedings, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule   54 §   2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government. 2.     The applicants further complain under Article   13 of the Convention taken together with Article   6 §   1 of the Convention of a   lack of an   effective remedy in respect of the Žilina Regional Court's judgment of 29   May 1998 and in respect of the length of the proceedings. Article   13 of the Convention provides that: “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.” a)     According to the Court's case-law, Article   13 applies only where an   individual has an “arguable claim” to be the victim of a violation of a   Convention right (see   Boyle and Rice v.   the United Kingdom , judgment of 27   April 1988, Series   A no.   131, §   52). The Court has noted above that the Regional Court's judgment of 29   May 1998 was quashed by the Supreme Court on 13   December 2000 and that the proceedings on the company's administrative ‑ law appeal against the decision of the Tvrdošín Land Office of 27   May 1997 are still pending. The Court finds that, in these circumstances and even assuming that the applicants have had the status of a   “victim” in the Convention sense in this context, they cannot be   said to   have an   “arguable claim” for the purposes of Article   13 of the Convention of a   violation of their rights protected under Article   6 §   1 of the Convention in connection with the contested judgment. 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 under Article   13 of the Convention of the lack of an   effective remedy in respect of the complaint under Article   6 §   1 of the Convention of the length of the proceedings in the present case, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule   54 §   2 (b) of the Rules of Court, to   give notice of this part of the application to the respondent Government. For these reasons, the Court unanimously Decides to   adjourn the examination of the applicants' complaint under Article   6 §   1 of the Convention of the length of the proceedings and their complaint under Article   13 of the Convention of the lack of an   effective remedy in that respect; Declares the remainder of the application inadmissible.   Michael O'Boyle   Nicolas BRATZA   Registrar   President