CASE OF KACMAR v. SLOVAKIA
No violation of Art. 6-1;No violation of Art. 13;No violation of P1-1
Nicolas Bratza
9. The applicant leased premises in a house owned by Kovospracujúci podnik, a State owned company with registered office in Prešov. He ran his business there. In April and May 1991 the applicant claimed that the relevant provisions of the State Property Transfer Act of 1990 (Act No. 427/1990) entitled him to purchase the part of the house which he leased. 10. On 12 June 1991 the Prešov District Commission for Denationalisation of State-Owned Property decided that the applicant was not entitled, under the State Property Transfer Act of 1990, to be given priority in purchasing the premises leased by him. 11. On 6 June 1991 the applicant filed an arbitration request claiming tht Kovospracujúci podnik should be ordered to conclude a purchase contract with him under Act No. 427/1990 in respect of the two premises leased by him and having the surface of 47.7 and 34.9 square metres respectively. The applicant further claimed that the purchase contract was to be determined pursuant to Section 8 of Act No. 427/1990. 12. On 16 July 1991 the Regional Arbitration Court (Krajská štátna arbitráž) in Košice delivered a decision the operative part of which reads: “The defendant – Kovospracujúci podnik, a State owned enterprise in Prešov is obliged to conclude a purchase contract with [the applicant] who has leased two premises situated ... in the building located in Prešov, Hlavná ulica 79 and having a surface area of 47.7 and 34.9 square metres respectively. The purchase contract shall concern the above premises and is to be concluded under Section 16(2) of Act No. 427/1990 within ten days from the final effect of this decision, it being understood that the purchase price will be determined pursuant to Section 8 of Act No. 427/1990.” The decision acquired final binding effect on 8 August 1991. 13. On 9 October 1991 the applicant concluded a purchase contract with Kovospracujúci podnik and paid the purchase price. The contract comprised several premises the total surface area of which was 145 square metres and also real estate with a surface area of 883 square metres. Subsequently Kovospracujúci podnik was placed in liquidation. 14. On 23 July 1992 the liquidator claimed that the proceedings leading to the decision of the Regional Arbitration Court of 16 July 1991 be re-opened. The liquidator argued that the requirements of the State Property Transfer Act of 1990 had not been met. On 25 February 1994 the Košice Regional Court dismissed the request. The decision stated that the liquidator had submitted no new relevant facts which could not have been invoked in the original proceedings and that, accordingly, the statutory requirements for re-opening the proceedings had not been met. 15. On 31 January 1995 the Prešov District Court declared the purchase contract of 9 October 1991 void ex tunc at the initiative of the Prešov District Prosecutor. The District Court found that in the contract the parties had not explicitly agreed on the date of transfer of the ownership as required by the relevant law and that the lawyer of Kovospracujúci podnik had exceeded his power in that he had also included in the contract premises which had not been leased by the applicant. 16. On 20 December 1995 the Košice Regional Court upheld the District Court’s judgment. The Regional Court found that the contract did not specify the property in question with sufficient certainty and that this resulted in conflicts between the applicant and another person who had purchased the remaining part of the house from Kovospracujúci podnik. With the consent of the parties the Košice Regional Court discontinued the proceedings in respect of the claim that Kovospracujúci podnik and the applicant should restore to each other everything which had been the subject of the contract of 9 October 1991. 17. On 19 December 1995 the applicant requested the Prešov District Court to enforce the decision delivered by the Regional Arbitration Court in Košice on 16 July 1991. He relied on Article III (7)(a) of Act No. 519/1991, Section 763(1) of the Business Code and Section 42a(6) of the Arbitration Act. 18. In December 1995 and in March 1996 the applicant submitted a new draft purchase contract for signature to the liquidator of Kovospracujúci podnik with reference to the arbitration court’s decision of 1991. On 22 April 1996 the liquidator asked the applicant in writing to submit a supplement to the draft contract as well as an expert opinion. 19. On 9 April 1996 the person who had purchased the other part of the house claimed that the co-ownership of the house be dissolved and that the share owned by Kovospracujúci podnik be transferred to his ownership. On 22 April 1996 the Prešov District Court granted the claim with reference to Article 142(1) of the Civil Code and ordered the plaintiff to pay 188,496.61 Slovakian korunas (SKK) to Kovospracujúci podnik. The liquidator of the latter waived his right to appeal and the judgment became final on 2 May 1996. It was not served on the applicant as he was not a party to the proceedings. 20. On 17 May 1996 the applicant requested the grant of an interim measure prohibiting Kovospracujúci podnik from concluding any contracts for the transfer of the property in question. On the same day the Prešov District Court granted the request. On 7 February 1997 the Košice Regional Court reversed the first instance decision as, at the time of its delivery, Kovospracujúci podnik no longer owned the property. 21. On 23 May 1997 the applicant complained about a violation of his property rights to the Constitutional Court. On 1 July 1997 the latter rejected the petition for lack of jurisdiction. 22. On 26 May 1997 the applicant requested the Prešov District Court to consider the new owner of the house as defendant in the enforcement proceedings brought on 19 December 1995. 23. On 4 June 1997 the Prešov District Court, responding to the applicant’s above request of 19 December 1995, ordered the enforcement of the decision of the Regional Arbitration Court of 16 July 1991 in that it imposed a fine of SKK 5,000 on the owner of the house with reference to Article 351 of the Code of Civil Procedure. The District Court expressed the view that the obligation to conclude a purchase contract had passed ex lege to the new owner of the house following the transfer of ownership to him. The proceedings were discontinued so far as they concerned Kovospracujúci podnik, as the latter no longer owned the property. The owner of the house appealed. 24. On 15 August 1997 the Prešov Regional Court quashed the District Court’s decision of 4 June 1997. The Regional Court did not find it established that the obligation imposed by the arbitration court in 1991 had been transferred to the new owner of the house. It therefore instructed the first instance court to ask the applicant and the liquidator of Kovospracujúci podnik whether they agreed to a change of defendant. Failing such an agreement, there could be no change of defendant. 25. As to the merits of the applicant’s claim for enforcement, the Regional Court’s decision stated: “... it is not possible to proceed pursuant to Article 351 of the Code of Civil Procedure or by any other means of enforcement of a decision where the decision to be executed imposes an obligation to make a certain declaration of intent [prejav vôle] within the meaning of Article 80(b) of the Code of Civil Procedure (for example to conclude a purchase contract). In such a case Section 161(1) of the Code of Civil Procedure is not applicable ... but Article 161(3) is to be applied, according to which final judgments imposing the declaration of intent replace such a declaration of intent. Accordingly, on the basis of such a judgment it is not possible to claim its judicial enforcement where the person concerned fails to comply with the obligation imposed, and it is not possible to have recourse to Article 351 of the Code of Civil Procedure...” 26. On 6 November 1997 the Prešov District Court dismissed the applicant’s request for change of defendant as the liquidator of Kovospracujúci podnik disagreed with the proposal. The statutory requirements for granting the applicant’s request had thus not been met. 27. In a separate decision delivered on 6 November 1997 the Prešov District Court dismissed the applicant’s request for enforcement of the Košice Regional Arbitration Court’s decision of 16 July 1991. In particular, the District Court’s decision stated: “...a decision relating to a declaration of intent may be relied on by the person at whose request it is made and is given effect to as a document reflecting a legal act, in accordance with the legal rules in force. The decision is submitted to the competent legal authority, where necessary, with a view to registering or making public the intent of the person against whom the proceedings have been brought. Such a decision may not be the subject either of judicial enforcement or of execution by an execution officer. The Košice Arbitration Court’s decision of 16 July 1991 ... cannot be enforced as it lacks a material element of enforceability. Where proceedings concern a declaration of intent in respect of a contract, the operative part of the decision on the merits of the case must contain all essential elements of such a contract ... Where one of such elements is omitted, the decision on the merits cannot be enforced pursuant to Article 161(3) and such a shortcoming cannot be remedied by any other means of enforcement. In the present case [the dispute concerns] a purchase contract. The definition of the purchase price is, along with its object, one of the essential elements of such a contract. Reference [in the Arbitration Court’s decision of 16 July 1991] to Section 16 of Act No. 427/1990 does not mean that the [vendor’s] declaration of intent which was to be replaced was sufficiently certain as required by Section 37 of the Code of Civil Procedure. In the case under consideration it is Article 161(3) and not Article 161(1) of the Code of Civil Procedure which is applicable... This means that on the basis of a judgment [replacing the declaration of intent of a party] ... it is not possible to claim judicial enforcement and it is not possible to proceed pursuant to Section 351 of the Code of Civil Procedure.” 28. The applicant appealed. He argued, inter alia, that the arbitration court’s decision of 16 July 1991 had not replaced the declaration of intent of the defendant company but had obliged its representatives to conclude a contract with the applicant. 29. On 18 December 1997 the Prešov Regional Court upheld the District Court’s decisions of 6 November 1997. The Regional Court noted that it was not possible to change defendants in the context of enforcement proceedings as a decision could be enforced only in respect of the person against whom it was delivered. The new owner of the house did not become the general successor to Kovospracujúci podnik which still existed. By purchasing the house the new owner was not, therefore, liable for the original owner’s contractual obligations. 30. As regards the applicant’s request for enforcement of the arbitration court’s decision of 16 July 1991, the Prešov Regional Court fully subscribed to the views expressed by the first instance court. In particular, the Regional Court’s decision stated that a decision ordering a party to conclude a purchase contract replaced the intent of the vendor to do so. In respect of such decisions, Article 161(3) was relevant, according to which, once they were of binding and final effect, such decisions replaced the intent of the party concerned. Enforcement of such decisions under Articles 161(1) and 351 of the Code of Civil Procedure was excluded. 31. In 1998 the applicant was ordered to move his business out of the premises in question. On 26 April 1999 the Prešov District Court ordered the applicant to pay SKK 513,187 plus default interest to the owner of the premises as compensation for their prior use. 32. Pursuant to Article 142(1), courts may terminate co-ownership of property at the request of one of the co-owners. When it is not practicable to divide the property, its ownership shall be transferred to one or several co-owners for appropriate compensation. Practical use of the property should be borne in mind. 33. Article 142(2) provides, inter alia 34. Under Article 142(3), the termination of co-ownership may not be detrimental to persons possessing rights attached to the real property concerned. 35. Under Article 80(b), a claim by way of judicial proceedings may concern the fulfilment of an obligation resulting from the law, from a legal relationship or from a violation of law. 36. Article 161(1) and (2) provides that a judgment is enforceable after the expiry of the time-limit set for complying with the obligation imposed by it or, when it does not impose an obligation, after it becomes final. 37. Under Article 161(3), final judgments ordering a party to make a declaration of intent have the effect of such a declaration. 38. Article 351(1) provides that courts may, in the context of enforcement proceedings, fine parties who fail to comply with obligations imposed by a decision which is to be enforced. 39. Pursuant to Article 351(2), the payment of a fine under the first paragraph of Article 351 does not exempt the party concerned from liability for damage. 40. Under Article 351(3), courts shall allow the party concerned to take steps with a view to restoring the previously existing conditions at the cost of the other party when the latter fails to comply with the obligation imposed by the decision to be enforced and thereby brings about a change in the situation. Courts may take appropriate measures with a view to assisting the party concerned in having the original situation restored. 41. Act No. 519/1991 of 18 December 1991 amends the Code of Civil Procedure. Article III(7)(a) provides that arbitration courts’ decisions remain enforceable unless the rights in question have lapsed. 42. Section 42a(6) provides that a decision imposing an obligation other than the payment of a sum of money can be enforced by means of a fine of up to 100,000 korunas. Such fines can be imposed repeatedly. 43. The Business Code entered into force on 1 January 1992. Section 763(1) provides that legal relations which came into being prior to its entry into force and the rights resulting there from are governed by legal rules existing prior to the entry into force of the Business Code. 44. Section 8 provides that real estate and buildings the ownership of which is to be transferred under this Act are to be valued in accordance with the relevant price regulations. 45. Under Section 16(1) and (2), persons who, by 1 October 1990, leased premises the ownership of which is to be transferred have the right to purchase those premises. In such a case, no public sale is to be held and the State organisation concerned shall conclude a purchase contract with the tenant. 46. Section 16(3) provides that the purchase price is to be determined pursuant to Section 8 of Act No. 427/1990. 47. Act No. 111/1990 on State-owned company (Zákon o štátnom podniku) was adopted on 19 April 1990. Under Section 2(1), State-owned companies carry out their activities autonomously and on their own account. Section 5(1) provides that State-owned companies are legal persons which take legal actions on their own behalf and incur liability for such actions. Under paragraph 2 of Section 5, State-owned companies do not assume liability for obligations of the State or of other persons. The State does not assume liability for obligations of a State-owned company unless the law otherwise provides. 48. In accordance with the Supreme Court’s case-law, judgments imposing an obligation to conclude a purchase contract replace the vendor’s declaration of intent to conclude such a contract. There is, therefore, no reason for applying Article 351 of the Code of Civil Procedure in proceedings concerning the enforcement of such judgments (Collection of opinions, conclusions, analyses and assessments of judicial practice, No. IV, p. 796). 49. Where a court’s judgment is to replace the declaration of intent of a party to a purchase contract concerning real property, the contents of the contract has to be specified in the operative part of the judgment or a reference must be made therein to an attached written version of such a contract. Such contract thus becomes a part of the operative part of the judgment. Where the real property is not sufficiently specified and where the operative part of a judgment does not contain information about the purchase price, the judgment cannot replace the declaration of intent of a party to conclude a purchase contract (Collection of Judicial Decisions and Standpoints of the Supreme Court, No. 53/1991).