BONDA v. SLOVAKIA
Inadmissible
Christos Rozakis
The applicant is a Slovak national, born in 1927 and living in Bratislava. A. The applicant, his wife and his son co-owned, together with six other individuals, a land in Stupava which they had jointly purchased in 1983. The four families co-owning the property built cottages on the land and reached an agreement as regards its use. In 1987 two co-owners requested that they should be authorised to accede to their cottage by a car across the plot used by the applicant and his family. An agreement was not reached and the two co-owners brought proceedings with a view to having the co-ownership dissolved. On 28 June 1988 the Bratislava-vidiek District Court (Okresný súd) dissolved the co-ownership and determined the owners of the individual plots forming the estate. It considered such a solution necessary in order to ensure a peaceful enjoyment of the property by all persons involved and also in order to enable the claimants to accede to the plot attributed to them. On 4 January 1989 the Bratislava Regional Court (Krajský súd) modified the first instance judgment in that it re-distributed the property with a view to ensuring all owners a direct access to their plots. Since the shares of the former co-owners could not be entirely respected, the persons concerned were granted a compensation. On 27 June 1990 the Supreme Court (Najvyšší súd) quashed the judgment as the facts had not been established with sufficient certainty. In particular, the Supreme Court considered that the Regional Court should have explored in more detail the possibility of dividing the property in accordance with the co-owners’ shares. The case was sent back to the Regional Court. On 30 August 1993 an expert appointed by the latter submitted his opinion on the division of the land. Another expert opinion concerning different issues was submitted on 13 July 1994. At a hearing held on 12 October 1994 the applicant requested an adjournment of the case as he had not been given an opportunity, despite his two requests to this effect, to examine the case-file. The applicant further challenged the two expert opinions. As regards the opinion of 30 August 1993, the applicant alleged that the data used by the expert were not correct, that the expert had not taken into account all the relevant facts and that the claimants’ request for access to their plot with a car was not justified. The applicant suggested that the Regional Court should order a second expert opinion on these issues. The court scheduled another hearing for 21 October 1994 so that the applicant could study the case-file on 13 and 14 October 1994. On 14 and 19 October 1994 the applicant challenged the presiding judge of the Regional Court. The applicant considered that the judge lacked independence and impartiality as he disregarded the opinion expressed in the Supreme Court’s judgment of 27 June 1990 and since he envisaged to accept the expert opinion of 30 August 1993 which was based on false facts. He also complained that the judge was not willing to order a second expert opinion. On 25 October 1994 the Supreme Court dismissed the applicant’s request. It considered that a mere objection to the way in which the judge proceeded with the case was not a relevant reason for his exclusion. The Supreme Court noted that the applicant had not substantiated his allegation that the judge was biased. It qualified the applicant’s request as an attempt to interfere with the court’s independence in deciding on the case. The Supreme Court’s decision was signed by a judge and stated that it was adopted in accordance with Section 16 (1) of the Code of Civil Procedure (see “Relevant domestic law and practice” below). On 13 December 1994 the president of the civil law section of the Supreme Court informed the applicant that the decision of 25 October 1994 had been taken by chamber no. 3Cdo and not by a single judge as alleged by the applicant. Another hearing before the Regional Court was scheduled for 14 December 1994. The applicant requested that the proceedings be adjourned. He alleged that the case was not ready for adjudication, that the Supreme Court’s decision of 25 October 1994 had not been taken by a chamber as required by Section 16 (1) of the Code of Civil Procedure and that his request of 8 December 1994 to be allowed to consult the case-file had not been granted. On 14 December 1994 the Regional Court upheld the Bratislava-vidiek District Court’s decision of 28 June 1988 to dissolve the co-ownership of the land and redistributed the ownership of the individual plots so that the claimants could directly accede to their plot. It referred to the conflicts between the claimants and the applicant’s family on this issue and held that such a solution conformed to Section 142 (1) of the Civil Code. When determining the shares of the owners the Regional Court noted that it was bound by the purchase contract of 17 January 1983 which had been duly registered by a State Notary. According to the contract, the claimant family and the applicant’s family had a title to one third of the property each. For practical reasons, the plot attributed to the members of the claimant family exceeded by 10 square meters their original share and the plot attributed to the members of the applicant’s family exceeded their share by 8 square meters. Both families were therefore ordered to pay a compensation to the other owners who were in agreement. The court further ordered the claimants to pay Slovak korunas (SKK) 9,290 to the applicant’s family as a compensation for a fence and other investments which they had made on the land. The amount of the compensation had been determined by an expert. The judgment was based on the expert opinion including a geometric plan submitted on 20 August 1993. The Regional Court noted that the opinion conformed to the relevant regulations. The court also referred to its two inspections of the site of 8 November 1988 and 31 March 1992 respectively. On 2 May 1995 the applicant complained to the president of the Regional Court that the judgment of 14 December 1994 had not been served on him. He alleged a violation of Section 158 (3) of the Code of Civil Procedure. On 6 May 1995 the president of the Regional Court informed the applicant that he had extended the time-limit for drafting the judgment with reasons until the end of May 1995 as the judge originally charged with this task was on a long-term sick leave. The judgment was served on the applicant on 9 May 1995. On 4 July 1995 the applicant lodged an appeal on points of law with the Supreme Court. He alleged that the Regional Court had not established the facts correctly and that it had decided arbitrarily. In his view, the Regional Court had disregarded a mistake committed by the State Notary when registering the co-owners’ shares on 21 Feburary 1983. The applicant also complained that the expert opinion of 30 August 1993 had been based on false facts, that his request for a second expert opinion had not been granted and that there existed no relevant reasons for granting the claimants access to their plot by a car. The applicant further alleged that prior to the hearing held on 14 December 1994 the Regional Court had not allowed him to consult the case-file, that his son had not been duly summoned and that the Regional Court’s judgment had been served belatedly. He complained that he had suffered a damage of SKK 59,368 which the Regional Court had not taken into consideration. The Supreme Court dismissed the appeal on points of law on 20 February 1997. It found that the Regional Court had proceeded in accordance with Section 142 (1) of the Civil Code and that the reasons for its judgment were relevant and sufficient. The Supreme Court noted that the co-owners’ shares had been duly registered by the State Notary in 1983 and found nothing to show that the expert opinion of 30 August 1983 did not conform to the law or was otherwise defective. The failure to order a second expert opinion was not contrary to the applicant’s right to act before the court. The Supreme Court further established that the damages granted to the applicant’s family had been determined by an expert and that the applicant’s complaint about further damage of SKK 59,368 had not been the subject-matter of the proceedings in question. Finally, the Supreme Court found that the applicant had consulted the file several times and considered it irrelevant that he could not accede to it prior to the hearing held on 14 December 1994. The applicant lodged a constitutional petition (podnet) in which he alleged a violation of his constitutional right to judicial protection. It was rejected on 8 October 1997. The Constitutional Court found that the applicant’s right to have his case examined by a court was respected. B. Relevant domestic law and practice Civil Code Section 142 (1) gives a court the right to dissolve, at the request of one of the co-owners, a joint ownership and to determine the rights of the persons concerned if the latter fail to reach an agreement on this issue. In doing so, the court shall consider the co-owners’ shares in the property and bear in mind that its use should be effective. Code of Civil Procedure Pursuant to Section 16 (1), the decision on a request for exclusion of a judge shall be taken by a chamber of the higher court. In accordance with Section 44 (1), parties to the proceeding and their representative have the right to consult the case-file with the exception of the records of votes. Section 127 (1) provides that a court shall appoint an expert after having heard the parties if its decision in a case depends on the assessment of facts requiring special knowledge. Pursuant to Section 127 (2), an expert opinion may be submitted for examination to another expert, a scientific institute or another institution. In accordance with the relevant case-law (Collection of the judicial decisions and opinions No. 1/1981), experts may also prepare opinions after an agreement with natural or legal persons. The interested persons may then submit such opinions to the courts which should consider them as a documentary evidence. Under Section 158 (3), a copy of the judgment with reasons should be dispatched within thirty days after its delivery. The court’s president may grant a derogation from this rule provided that it is justified by serious reasons.