EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 25006/94

I. S.

against

the Slovak Republic

REPORT OF THE COMMISSION

(adopted on 27 October 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-6) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 7-19) 2

III. OPINION OF THE COMMISSION

(paras. 20-34)              4

A. Complaint declared admissible

(paras. 20) 4

B. Point at issue

(para. 21) 4

C. As regards Article 6 para. 1 of the Convention

(paras. 22-34)              4

CONCLUSION

(para. 34) 7

APPENDIX: DECISION OF THE COMMISSION AS TO THE                                                                          ADMISSIBILITY OF THE APPLICATION                                                     8

I. INTRODUCTION

1. The present report concerns Application No. 25006/94 introduced on 3 May 1994 by I. S. against the Slovak Republic and registered on 25 August 1994.

The applicant is a Slovak citizen, born in 1956 and resident in Žilina .

The respondent Government are represented by their Agent, Mr Robert Fico .

2. The application was communicated to the Government on 17 January 1996.  Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 4 March 1997.  The decision on admissibility is appended to this Report.  On 18 April 1997 the Government submitted observations on the merits of the case.  They also requested the Commission to reject the application under Article 29 of the Convention.

3. On 27 October 1998 the Commission (Second Chamber) decided that there was no basis on which to apply Article 29 of the Convention.

4. Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1(b) of the Convention can be secured, the Commission (Second Chamber), after deliberating, adopted this Report on 27 October 1998 in accordance with Article 31 of the Convention, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

5. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the Slovak Republic.

6. The text of this Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

7. On 19 November 1991 the applicant and four other persons lodged an action for restitution of land with the Žilina District Court ("the District Court") ( Okresný súd ) against two state enterprises pursuant to the Extra-Judicial Rehabilitation Act No. 87/1991.  On 24 January 1992 a judge of the District Court invited the defendants to submit, within ten days, written observations on the merits of the action.  She also invited the applicant's lawyer to file a power of attorney.  On 11 March 1992 the judge ordered a hearing for 23 March 1992 and then adjourned it requesting the applicant to present a copy of his letter to the Ministry of Administration and Privatisation of National Property ( Ministerstvo pre správu a privatizáciu národného majetku )  concerning his financial compensation claims.  The applicant submitted the letter on 8 September 1992.

8. On 21 January 1993 the judge ordered an inspection of the site for 9 February 1993.  During the inspection it was established that the first defendant, a business enterprise, had been in the proceedings of dissolution since 1 January 1992 and its property had been transferred to the Žilina Town ( Mesto Žilina ).  The judge therefore asked the applicant to amend his restitution action and designate a new defendant.

9. On 8 March 1993 the applicant urged the judge to decide the case as soon as possible.  On 7 April 1993 the applicant, with reference to Sections 5 and 6 of the Court and Judges Act No. 335/1991 and to Section 6 of the Code of Civil Procedure, complained of delays in the proceedings to the President of the District Court.  He also requested that the judge be disqualified on the ground that she was involved in the complaint about the delays in the proceedings.  The complaint was considered as a complaint of bias and was referred, together with the court-file, to the Banská Bystrica Regional Court ("the Regional Court") ( krajský súd ) on 25 May 1993.

10. On 31 May 1993 the Regional Court decided that the judge at the District Court would not be disqualified.  On 16 July 1993 the case-file was remitted to the District Court.  A search for the case-number of succession proceedings relating to one of the co-plaintiffs who had died on 15 May 1993 had to be carried out.  On 27 August 1993 the decision of 31 May 1993 was served on the applicant who appealed on the same day notwithstanding that no appeal lay against the decision.  The Regional Court referred the case-file to the District Court which, on 26 October 1993, instructed the applicant that any appeal would be inadmissible.  The applicant insisted and the case-file was sent to the Regional Court by which it was referred to the Supreme Court ( Najvyšší súd ) which, on 25 November 1993, rejected the appeal for lack of jurisdiction holding that the Regional Court's decision was final.  On 1 February 1994 the case-file was sent back to the District Court.

11. In the meantime, as the applicant had received no reply to his complaint of 7 April 1993 about delays in the proceedings, he had lodged another complaint with the Ministry of Justice on 10 August 1993.  The complaint was remitted to the President of the District Court, who, on 29 September 1993, informed the applicant that his complaint had been considered as a request for disqualification of a judge and that it had been dealt with without undue delay.  He also noted that the restitution proceedings could not be pursued as one of the co-plaintiffs had died and separate succession proceedings relating to her estate had to be terminated first.  On 19 October 1993 the Regional Court confirmed, in reply to the applicant's complaint of 10 August 1993, the position of the President of the District Court.

12. On 8 February 1994 the judge of the District Court requested the applicant for the second time to amend his action for restitution and designate the Žilina Town as a new defendant.  The applicant did so on 16 February 1994.  On 12 August 1994 the judge informed the applicant that his designation was not sufficient and requested him to clarify it within seven days.  The applicant did so on 19 August 1994 submitting that as the first defendant was in dissolution, its property had been transferred to the Žilina Town which had taken over all the first defendant's rights and obligations.  He therefore asked the District Court to accept the Žilina Town as a defendant to the restitution proceedings.  The original action for restitution was enclosed with the amended claim.

13. On 25 November 1994 the judge requested the applicant to clarify whether the Žilina Town was intended to replace the first defendant or whether it was a new defendant and asked him to submit a new action for restitution properly designating the Town.

14. On 12 April 1995 the judge invited the applicant to submit, within ten days, further information on the succession proceedings concerning the estate of the deceased plaintiff.

15. On 26 April, 25 and 31 May, 7 and 27 June 1995 the District Court held five hearings adjourning them for substantial and procedural reasons until 25 and 31 May, 7 and 27 June and 15 September 1995, respectively.  The applicant and his lawyer were not present at the hearing of 7 June 1995.

16. On 15 September 1995 the District Court requested an expert to establish the boundaries of the plot at issue and to draw a plan of it.  On 9 January 1996 the expert presented his report.

17. On 18 January 1996 the District Court, after hearing the co-plaintiffs' submissions, adjourned the trial and on 30 January 1996 it decided in favour of the applicant.  On 30 May 1996, upon the defendants' appeal, the Regional Court, after a public hearing, quashed the judgment of the District Court and referred the case back to it.  The written judgment was served on the District Court and on the applicant on 4 October and 26 November 1996 respectively.

18. On 19 February 1997 the applicant submitted a detailed summary of his action for restitution to the District Court, and, on 3 April 1997 the Žilina Town submitted its observations on its merits.

19. On 9 June, 9 and 23 September 1997 hearings were held at the  District Court.  A subsequent hearing was scheduled for 23 January 1998.  However, the applicant's lawyer, having been notified only on 22 January 1998, could not properly prepare his submissions and sent his apologies.  The hearing was held on 17 February 1998.  On 20 February 1998 the District Court gave its judgment rejecting the applicant's action for restitution.  On 18 June 1998 the judgment was served on the applicant who appealed on 2 July 1998.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

20. The Commission has declared admissible the applicant's complaint that his case has not been heard within a reasonable time.

B. Point at issue

21. The only point at issue is whether the length of the proceedings complained of has exceeded the "reasonable time" requirement referred to in Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

22. The relevant part of Article 6 para. 1 of the Convention provides as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a hearing within a reasonable time by [a] tribunal ..."

23. The Commission notes that the proceedings in question concerned the applicant's action for restitution of land in application of the Extra-Judicial Rehabilitation Act No. 87/1991.  It considers that the purpose of the proceedings was to obtain a decision in a dispute over "civil rights and obligations", and that they accordingly fall within the scope of  Article 6 para. 1 of the Convention.

24. The Commission observes that the proceedings complained of began on 19 November 1991 when the applicant lodged the action for restitution with the Žilina District Court.  The proceedings are pending before the Banská Bystrica Regional Court.

25. The Commission notes that the period to be considered began on 18 March 1992 when the former Czech and Slovak Federal Republic ratified the Convention and recognised the right of individual application.  The Commission recalls that in cases where it can, by reason of its competence ratione temporis , only examine part of the proceedings, it can take into account, in order to assess the length, the stage reached in the proceedings at the beginning of the period under consideration (see Eur. Court HR, Foti and Others v. Italy judgment of 10 December 1982, Series A no. 56, pp. 18-19, para. 53).  Consequently, the proceedings complained of have lasted to date six years and seven months; on 18 March 1992 they had been pending for some four months.  The Commission observes that the merits of the case have been dealt with twice by the Žilina District Court and twice by the Banská Bystrica Regional Court.

26. The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of a case and having regard to the criteria laid down in the Convention organs' case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see Eur. Court HR, Proszak v. Poland judgment of 16 December 1997,  to be published in Reports of Judgments and Decisions 1997-VIII, p. 2772, para. 32).  Moreover, in civil cases the right to a hearing within a reasonable time is subject to diligence being shown by the parties concerned (see Eur. Court HR, Pretto and Others v. Italy judgment of 8 December 1983, Series A no. 71, p. 14 et seq., paras. 33 et seq.).  In this regard it should be borne in mind that only delays attributable to the State may justify a finding of a failure to comply with the "reasonable time" requirement (see Eur. Court HR, H. v. France judgment of 24 October 1989, Series A no. 162, pp. 21-22, para. 55).  These principles do not, however, absolve a judge from the responsibility of ensuring that the requirement of speediness is complied with (see Eur. Court HR, Martins Moreira v. Portugal judgment of 26 October 1988, Series A no. 143, p. 17, para. 46).  The Commission reiterates that Article 6 para. 1 of the Convention imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time (see Eur. Court HR, Süssmann v. Germany judgment of 16 September 1996, Reports 1996-IV, p. 1174, para. 55).

27. The applicant states that his case could be considered complex.  He claims that filing an amended claim between 9 February 1993 and 30 June 1993 would have been problematical and premature because the first defendant still legally existed and the applicant would have risked the court refusing the claim.  He submits that it was only on 8 February 1994 that he was first reminded by the judge at the Žilina District Court that he should amend the claim.  He filed the amended claim on 16 February 1994.  He submits that the judge's request for an amended claim of 12 August 1994, based on procedural defects in the pleadings, was controversial and depended on a legal interpretation of the relevant provisions in the Code of Civil Procedure.  The applicant further submits that it was not necessary to deal with the succession of the deceased plaintiff, because in the action for restitution filed on 19 November 1991 and in the evidence attached thereto, the District Court had been informed that the second and third plaintiffs were entitled under the Extra-Judicial Rehabilitation Act No. 87/1991 to receive the land at issue in equal shares.  In the applicant's view, the five successive hearings in 1995 at the District Court were influenced by his complaint concerning the length of the proceedings brought before the President of this court, the President of the  Regional Court and the Ministry of Justice, and by his application lodged with the European Commission of Human Rights.

28. The Government contend that the action for restitution involved legal issues of a complex nature.  They argue that the District Court and the Regional Court have dealt with the case without unreasonable delay and have given their judgments within a reasonable period of time within the meaning of Article 6 para. 1 of the Convention.  The Government submit that the only delay of about six months from 16 February 1994, when the applicant lodged the amended claim improperly, to 12 August 1994, when the judge at the District Court invited his lawyer to submit a claim in conformity with the procedural rules, was due to the overburdening of the District Court and the excessive workload of the judge dealing with the applicant's case.  The Government add that between 4 May and 1 June 1992, 9 November and 14 December 1992, and 4 November 1994 and 16 January 1995 the judge was absent due to illness.  This fact did not, however, affect the length of the proceedings.  Moreover, it would not have been reasonable and justified to replace the judge because the matter was very complex and a new judge would have needed more time to acquaint himself with the file.  The Government further contend that the applicant contributed substantially to the overall length of the proceedings by his unprofessional and incompetent conduct when he did not obey, on several occasions, the advice or instructions of the judge of the District Court.  The Government refer in particular to the amended claim which the applicant was invited to submit.  They submit that the applicant's amended claim was presented improperly on 16 February 1994.  The rectified amended claim submitted on 19 August 1994 did not comply with the procedural requirements as it contained only a copy of the original claim in which the new defendant was not mentioned.  Despite the advice of the judge on 25 November 1994, the applicant insisted on maintaining his claim and continued his conduct contrary to the Code of Civil Procedure.

29. The Commission first considers, like both the applicant and the Government, that the restitution proceedings in question raise a complex issue of a factual nature which contributed to some extent to the length of the proceedings.

30. As regards the applicant's conduct, the Commission finds that he contributed to the length of the proceedings by the delay in presenting of his letter to the Ministry of Administration and Privatisation of National Property (between 23 March 1992 and 8 September 1992) and by filing an improper appeal to the Supreme Court against the decision of the Banská Bystrica Regional Court dismissing his request for the disqualification of the judge (between 27 August 1993 and 1 February 1994).  However, in the Commission's view, the applicant's conduct alone cannot explain the overall length of the proceedings.

31. In respect of the conduct of the Slovak authorities, the Commission notes that the applicant presented the letter to the Ministry for Privatisation on 8 September 1992 and that the judge ordered the inspection of the site on 21 January 1993, i.e. after four months and thirteen days.  After the applicant had presented his amended claim on 16 February 1994, the Žilina District Court remained inactive until 12 August 1994, i.e. for five months and twenty-seven days.  The Government submit that this delay was due to the overburdening of the District Court and the excessive workload of the judge dealing with the applicant's case.  The Commission notes, however, that the Government do not give more details in this regard.  The Commission further notes that the Government do not submit any convincing explanation for the period of seven months and twenty-four days between 19 August 1994 and 12 April 1995.

32. The Commission also notes that two periods of inactivity, between 30 May 1996 and 26 November 1996 and between 20 February 1998 and 18 June 1998, i.e. almost six months and four months respectively, occurred between the pronouncing of the judgments of the Banská Bystrica Regional Court and the Žilina District Court respectively and these judgments being served on the applicant.

33. The Commission recalls that the proceedings raised complex issues, and that the applicant, to some extent, contributed to their length.  Nevertheless, having regard to the authorities' conduct described above, the Commission finds that the length of the proceedings exceeded the "reasonable time" referred to in Article 6 para. 1 of the Convention.

CONCLUSION

34. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

   M.-T. SCHOEPFER                              J.-C. GEUS

      Secretary                                  President

to the Second Chamber                    of the Second Chamber