CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 avril 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. 27391/95                       by Vincent HÁMORSKY and 4 others                       against the Slovak Republic        The European Commission of Human Rights (Second Chamber) sitting in private on 11 April 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                  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 November 1994 by Vincent HÁMORSKY and 4 others against the Slovak Republic and registered on 24 May 1995 under file No. 27391/95;        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 applicants are Slovak citizens.   Their particulars are set out in the Appendix attached hereto.   Before the Commission they are represented by Mr. J. Malecky, a lawyer practising in Velky Saris.   The facts of the case, as submitted by the applicants, may be summarised as follows.        By a decision of the Confiscation Commission in Kosice of 15 July 1946 some 250 hectares of land were confiscated from Mr. Pavol Hámorsky on the ground that he was of Hungarian nationality.        On 27 November 1946 the Confiscation Commission in Kosice withdrew 50 hectares of the land from confiscation and assigned it free of charge to Mrs. K., one of the daughters of Mr. Pavol Hámorsky.   It appears that Mrs. K. was officially informed of this decision in 1950. In the meantime the 50 hectares of land were used by the whole family.        In 1947 Mr. Pavol Hámorsky (who apparently was not informed of the aforesaid decision) unsuccessfully tried to have 50 hectares of his land withdrawn from confiscation.   He died intestate in 1962.        In 1991 the applicants (two sons of Mr. Pavol Hámorsky and three children of the latter's other daughter) as well as Mrs. K. applied for restitution of their father's and grandfather's property pursuant to the Land Ownership Act of 21 May 1991 (Zákon o úprave vlastníckych vztahov k pôde a inému polnohospodárskemu majetku).        The claim was dealt with by different authorities.   By decision No. 1861/93/Mi of the Kosice-vidiek Land Office (Pozemkovy úrad) of 27 January 1994, part of the property was to be restored to the claimants.   The Land Office further decided, inter alia, that a further part of the property could not be restored as it was owned by other natural persons.         By decision No. 1862/93/94/Mi of the same day the Kosice-vidiek Land Office granted Mrs. K ownership of part of the land (some 29,21 hectares), which it had refused to restore to all claimants by decision No. 1861/93/Mi.   It held that the land at issue had been taken from Mrs. K. pursuant to the relevant provisions of Act No. 46/1948, and that pursuant to Section 6 para. 1 (b) of the Land Ownership Act this was a relevant reason for its restitution.        The Land Office found that after the property of Mr. Pavol Hámorsky had been confiscated, 50 hectares of his land had been transferred to Mrs. K.   This land had later been reduced, as a result of the land reform, to some 40 hectares.   In 1950 some 29,21 hectares of this land had been expropriated and the remaining some 9,76 hectares had been put at the disposal of Mrs. K.        The Land Office further established that on 16 July 1970 the State Notary in Kosice had approved an agreement among the beneficiaries by which Mrs. K. had acquired the 9,76 hectares of land mentioned above.   This land had been used by a cooperative.        The applicants lodged an appeal against decision No. 1862/93/94/Mi with the Kosice Regional Court (Krajsky súd).   They claimed that the 29,21 hectares of land (which had been assigned to Mrs. K. by virtue of the aforesaid decision) as well as the 9,76 hectares of land (which had been granted to Mrs. K. by virtue of theState Notary's decision of 16 July 1970) should be restored to all beneficiaries and not only to Mrs. K.   The applicants were represented by a lawyer.        They alleged that the contested land had been first confiscated from their father and grandfather.   In their view, this act had been unlawful as under the law then in force the property of Mr. Pavol Hámorsky could not be confiscated.   They claimed that the withdrawal of 50 hectares of land from the confiscated property and the attribution of the land to Mrs. K. had also been unlawful.   The applicants maintained that Mrs. K. had never been officially registered as owner of that land.        They also complained that the State Notary's decision of 16 July 1970 was unlawful as the land it related to had been confiscated from Mr. Pavol Hámorsky.        On 3 June 1994 the Kosice Regional Court upheld the Land Office's decision No. 1862/93/94/Mi.   It established that on 27 November 1946 the Confiscation Commission in Kosice had withdrawn, at Mrs. K.'s request, 50 hectares of Mr. Pavol Hámorsky's land from the confiscation and assigned it free of charge to Mrs. K.        This decision was based on the relevant provisions of the Slovak National Council's Order No. 64/1946 under which a spouse or children of a person of German or Hungarian nationality, whose agricultural property fell under the confiscation, were entitled to request that this property (up to 50 hectares) should not be confiscated, provided that the spouse or children had Slovak nationality and had or would acquire Czechoslovak citizenship.   Such decisions were to be considered as an official document which entitled the person concerned to have the transfer of the property entered in the land registry.        The court found that the land at issue had been reduced, in the course of the land reform, to some 40 hectares, and that it had been used by the whole family of Mr. Pavol Hámorsky.   In March 1950 some 29,21 hectares of the land, which had still been formally registered in the name of Mr. Pavol Hámorsky, had been expropriated from Mrs. K. who had been considered as the real owner.        For these reasons the Kosice Regional Court held that Mrs. K. had showed, as required by Section 4a of the Land Ownership Act, that she had owned the land at issue before it had been expropriated and that the only reason why there had been no formal transfer of ownership had been the absence of its entry in the land registry.        The remaining part of the property that had been withdrawn from confiscation, i.e. some 9,76 hectares of land, had been put at the disposal of Mrs. K., but no ownership certificate had been issued.   By decision of the National Committee in Kosice of 11 May 1951 this property, with the exception of a house, had also been acquired by the State and put at the disposal of a co-operative.        The Regional Court further held that by virtue of the agreement among the beneficiaries approved by the State Notary's decision of 16 July 1970 (the State Notary having apparently not been aware of the decision of the National Committee in Kosice of 11 May 1951) Mrs. K. was to be regarded as owner of the 9,76 hectares of land governed by that decision.      The court concluded that some 38,97 hectares of land originally owned by Mr. Pavol Hámorsky belonged exclusively to Mrs. K. (i.e. some 29,21 hectares of land which had been taken from her in 1950 and the 9,76 hectares which she had acquired by virtue of the State Notary's decision of 16 July 1970).        The court quashed a part of the Land Office's decision No. 1861/93/Mi as according to that decision the beneficiaries were granted more than 150 hectares of agricultural land.   It held that pursuant to Section 6 para. 3 of the Land Ownership Act only 150 hectares of agricultural land or 250 hectares of both agricultural and non-agricultural land could be restored to them.        The Regional Court stated in the reasons for its judgment that the case was sent back to the Kosice-vidiek Land Office to the extent that the decision No. 1861/93/Mi had been quashed.   However, it omitted to mention this fact in the operative part of the judgment. This shortcoming was eliminated by the supplementary judgment of 10 August 1994 which was not pronounced publicly.        On 10 June 1994 the applicants protested in writing against the minutes of the hearing which had been held before the Kosice Regional Court on 3 June 1994.   They complained that the minutes did not state that only one of them had been allowed to take the floor but had to stop speaking as he had been constantly interrupted by the President of the court.        The applicants lodged an appeal on points of law (dovolanie) with the Supreme Court.   On 21 December 1994 the latter discontinued the proceedings as such a remedy was not available in the applicants' case.        In subsequent proceedings before administrative authorities the applicants' (and Mrs. K.'s) case was transmitted to the Kosice-mesto Land Office.   On 5 April 1995 the latter granted them compensation for the land covered by the part of the Kosice-vidiek Land Office's decision No. 1861/93/Mi which had been quashed.        By July 1995 the beneficiaries had been granted ownership to or compensation for some 236,7 hectares of land out of some 250 hectares originally owned by Mr. Pavol Hámorsky.   COMPLAINTS        The applicants complain under Article 6 of the Convention that the Kosice Regional Court did not establish the facts correctly and decided erroneously as it did not take into account that under the law then in force the land of Mr. Pavol Hámorsky should not have been confiscated.   In their view, the transfer, in 1946, of 50 hectares of the land to Mrs. K. on the mere ground that her husband was a Slovak citizen was also unlawful.   The applicants allege that the property at issue was expropriated twice, and that the ownership should have been granted to all beneficiaries as the land was first confiscated from Mr. Pavol Hámorsky.        They further allege that the proceedings before the Kosice Regional Court were unfair as they were not allowed to present all their arguments, and that the supplementary judgment of 10 August 1994 was not pronounced publicly.        Under Article 14 of the Convention the applicants complain that they were discriminated against in the enjoyment of the property of their father and grandfather in that the contested 38,97 hectares of land were acquired by Mrs. K. alone and not by all beneficiaries.        Under Article 13 of the Convention the applicants complain that their claim was dismissed and that they did not have an effective remedy against the alleged violation of their rights in the proceedings before the Kosice Regional Court.        Finally, the applicants allege a violation of Articles 1 and 17 of the Convention.   THE LAW   1.    The applicants allege 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.   Judgment      shall be pronounced publicly ..."   a)    To the extent that the applicants complain that the Kosice Regional Court did not establish the facts correctly and decided erroneously, the Commission recalls that it is not called upon to decide whether or not the domestic courts have correctly assessed the evidence before them or to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (cf., mutatis mutandis, No. 21283/93, Dec. 5.4.94, D.R. 77 pp. 81, 88, with further references).        The Commission notes that the Kosice Regional Court examined the particular circumstances of the applicants' case and evaluated the evidence before it.   For reasons expressly stated in its judgment of 3 June 1994 it upheld, with reference to the relevant provisions of the Land Ownership Act, the Local Office's decision No. 1862/93/94/Mi and quashed a part of decision No. 1861/93/Mi.   It found that some 38,97 hectares of land originally owned by Mr. Pavol Hámorsky belonged exclusively to Mrs. K.   In the Commission's view this decision is neither unfair nor arbitrary.   b)    The applicants further allege that they were not allowed to present their arguments in the proceedings before the Kosice Regional Court and that the supplementary judgment of 10 August 1994 was not pronounced publicly.        The Commission notes that the applicant who was given the floor in the proceedings before the Kosice Regional Court decided himself to stop speaking after he had been several times interrupted by the President.   The applicants were represented by a lawyer and it does not appear from their submissions that they were prevented from presenting their case through her.        In the reasons for its judgment of 3 June 1994 the Kosice Regional Court stated that the applicants' case was transmitted to the Kosice-vidiek Land Office to the extent that a part of the latter's decision No. 1861/93/Mi had been quashed.   However, this fact was notmentioned in the operative part of the judgment.   This shortcoming was eliminated by the supplementary judgment of 10 August 1994 which was not pronounced publicly.        In the subsequent proceedings before administrative authorities the property covered by the aforesaid supplementary judgment was restored to the beneficiaries, including the applicants.   In these circumstances the Commission considers that the absence of a public pronouncement of the supplementary judgment did not affect the applicant's rights under Article 6 (Art. 6) of the Convention.        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.   2.    The applicants complain that they were discriminated against in the enjoyment of the property of their father and grandfather, and that they were not granted the same rights as Mrs. K.   They allege a violation of Article 14 (Art. 14) of the Convention which reads as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."        The Commission considers it appropriate to examine this complaint under Article 14 of the Convention in combination with Article 1 of Protocol No. 1 (Art. 14+P1-1).        The Commission does not consider it necessary to examine whether the applicants' claim amounted to a possession within the meaning of the first sentence of Article 1 of Protocol No. 1 (P1-1) since this part of the application is in any event inadmissible for the following reasons.        In the present case both the Kosice-vidiek Land Office and the Kosice Regional Court found that the applicants could not be granted ownership of the land at issue as, for reasons contained in the judgment of 3 June 1994, this land belonged to Mrs. K.   The Commission has found above that this decision was not arbitrary.        In the Commission's view the applicants and Mrs. K. were not, in this respect, in a similar situation since by virtue of the decision of the Confiscation Commission in Kosice of 27 November 1946 the contested land had been withdrawn from confiscation and assigned to Mrs. K.   For this reason the refusal to grant ownership of this land to the applicants cannot be considered as discriminatory within the meaning of Article 14 (Art. 14) of the Convention.        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.   3.    The applicants further allege a violation of Article 13 (Art. 13) of the Convention which provides as follows:        "Everyone whose rights and freedoms as set forth in this      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."        The Commission notes that the Kosice Regional Court examined the applicants' claim and decided to dismiss it.   However, in accordance with the Convention organs' case-law the effectiveness of a remedy, for the purposes of Article 13 (Art. 13) of the Convention, does not depend on the certainty of a favourable outcome (cf. Eur. Court H.R., Pine Valley Developments Ltd and Others judgment of 19 November 1991, Series A no. 222, p. 27, para. 66, with further reference).        To the extent that the applicants complain that they did not have an effective remedy against the part of the Kosice Regional Court's judgment of 3 June 1994 by which it upheld the Land Office's decision No. 1862/93/94/Mi, the Commission recalls that Article 13 (Art. 13) of the Convention does not require that there should be several levels of jurisdiction (cf. No. 10153/82, Dec. 13.10.86, D.R. 49 p. 67).        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.   4.    Finally, the applicants allege a violation of Articles 1 and 17 (Art. 1, 17) of the Convention.        The Commission has examined these complaints but finds that insofar as they have been substantiated and are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber       President of the Second Chamber         (M.-T. SCHOEPFER)                        (H. DANELIUS)